Note added on 4/5: Some readers missed the point of this post very badly, which means that it could have been written more clearly. Here is a brief attempt to clarify.

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Here are three dilemmas about public policy:

Farnsworth McCrankypants just hates the idea that someone, somewhere might be looking at pornography. It’s not that he thinks porn causes bad behavior; it’s just the idea of other people’s viewing habits that causes him deep psychic distress. Ought Farnsworth’s preferences be weighed in the balance when we make public policy? In other words, is the psychic harm to Farnsworth an argument for discouraging pornography through, say, taxation or regulation?

Granola McMustardseed just hates the idea that someone, somewhere might be altering the natural state of a wilderness area. It’s not that Granola ever plans to visit that area or to derive any other direct benefits from it; it’s just the idea of wilderness desecration that causes her deep psychic distress. Ought Granola’s preferences be weighed in the balance when we make public policy? In other words, is the psychic harm to Granola an argument for discouraging, say, oil drilling in Alaska, either through taxes or regulation?

Let’s suppose that you, or I, or someone we love, or someone we care about from afar, is raped while unconscious in a way that causes no direct physical harm — no injury, no pregnancy, no disease transmission. (Note: The Steubenville rape victim, according to all the accounts I’ve read, was not even aware that she’d been sexually assaulted until she learned about it from the Internet some days later.) Despite the lack of physical damage, we are shocked, appalled and horrified at the thought of being treated in this way, and suffer deep trauma as a result. Ought the law discourage such acts of rape? Should they be illegal?

If your answers to questions 1, 2 and 3 were not all identical, what is the key difference among them?

A. I have a strong visceral sense that Bob McCrankypants’s issues are his own and ought not impinge on public policy. This makes it incumbent on me to think about where I draw the line — why should one sort of harm (e.g. a punch in the nose) be legally actionable and another (e.g. psychic distess over someone else’s reading habits) not be? I’ve mused on this before (e.g. in the final chapter of More Sex is Safer Sex), but I think I’ve failed to draw a compelling bright line. That said, some clearly relevant issues are:

We have only Bob’s word for the magnitude of his distress.

We don’t want to encourage others to dredge up their own feelings of psychic harm, which might have lain safely buried in their unconsciousness until they noticed that conscious expressions of such feelings tend to get rewarded.

B. It seems crystal clear to me that there is no substantive difference between Bob and Granola. If Granola plans to hike the Alaskan wilderness, and if those plans are likely to be disrupted by oil drilling, that’s a legitimate reason to discourage oil drilling (though of course there might be countervailing reasons to encourage it). But as long as she’s sitting in her own living room fuming about other people’s drilling habits, even as Bob sits in his living room fuming about other people’s viewing habits, I see no reason why her fumes should get more public policy weight than his.

C. I’m having trouble articulating any good reason why Question 3 is substantially different from Questions 1 and 2. As long as I’m safely unconsious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits? And if the thought of those benefits makes me shudder, why should my shuddering be accorded any more public policy weight than Bob’s or Granola’s? We’re still talking about strictly psychic harm, right?

D. It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies. Every time someone on my street turns on a porch light, trillions of photons penetrate my body. They cause me no physical harm and therefore the law does nothing to restrain them. Even if those trillions of tiny penetrations caused me deep psychic distress, the law would continue to ignore them, and I think there’s a case for that (it’s the same as the case for ignoring Bob McCrankypants’s porn aversion). So for the issues we’re discussing here, bodily penetration does not seem to be in some sort of special protected category.

E. One could of course raise a variety of practical issues. If we legalize the rape of unconscious people, we will create an incentive to render people unconscious. If you answered Question 3 differently than you answered Questions 1 and 2, was it because of this sort of thing? Or do you see some more fundamental difference among the three cases?

F. Followup question: If your answer depends on the (perfectly plausible) assertion that the trauma from learning you’ve been raped is of a different order of magnitude from the trauma suffered by Bob and Granola, would you be willing to legalize the rape of the unconscious in cases where the perpetrators take precautions to ensure the victim never learns about it?

Edited to add: Some commenters have suggested that Question 3, unlike Questions 1 and 2, involves a violation of property rights. This seems entirely wrong to me; in each case, there is a disputed property right — a dispute over who controls my computer, a dispute over who controls the wilderness, a dispute about who controls my body. To appeal to a “respect for property rights” solves nothing, since in each case the entire dispute is about what the property rights should be in the first place.

I’m inclined to think that while there may be a few good reasons for why we should punish rape when the victim never knows it happened, our common inability to detangle categories (X is rape, therefore X is bad) from the reasons we originally opposed the action (rape is bad because of the physical and psychological trauma, the risk of STDs and pregnancy), leads us to think it is worse than it is. See The Worst Argument in the World.

“would you be willing to legalize the rape of the unconscious in cases where the perpetrators take precautions to ensure the victim never learns about it?”

How would the perpetrator even be caught if the victim was unaware? This seems like an impossible scenario. If the criminal justice system is aware of it, then the victim certainly is, and hence the perpetrator has inflicted grave psychic distress and should be punished accordingly.

The only plausible scenario I could envision is if the perpetrator has evidence of the crime, say a video, but the victim is anonymized.

But even in this scenario the existence of the video will create a class of people who must assign some non-negative probability to them being the specific victim. Believing yourself to have a .01% chance of being violated must certainly cause at least .01% of the psychic distress of being 100% sure. Probably much higher in fact, since people systematically overestimate the likelihood that low-probability events will happen to them.

In aggregate telling a million people that they’re a member of a group, of which at least one was raped while unconscious will cause at least as much aggregate psychic distress as telling one person. So just the same such a person should be punished accordingly, and probably be compelled to reveal the identity of the victim.

My answer for (3) is based on the idea of ownership. If we assume we own our own bodies (on the admittedly shaky grounds that we would not accept that anyone else owns them), then the issue is that the attackers have used something without the consent of the owner.

It’s the same answer I would give for someone stealing a car, driving to the shops, filling up the tank, rotating the tires, and putting it back where they found it. While this is less harmful than stealing the car and selling it, it’s still illegal: the car is being used without the consent of the owner.

As to *why* private property should be protected even when the use of it without consent does not cause obvious harm… that’s a longer discussion! Incentives, who decides what harm is, contention in time (I want to use my property but someone else has taken it to use without “causing me harm”), etc, probably all figure into it.

Neither Farnsworth nor Granola are objecting to the use of something they own. They are objecting to the use of an abstract category of things (Farnsworth, with the added benefit of it being very difficult to determine what concrete things belong to this abstract category) or to the use of state-owned property (Granola, with the added complication that if it is state-owned, does this imply she owns some share of it, and is that share adequately represented by her vote).

What’s so special about the particular case where the rape victim never finds out about the rape and has zero perceived psychic cost? What if they do find out about it — or are even conscious during the rape — but the perceived cost to them is less than the enjoyment the attacker got out of it? Then by the economic logic you’re advocating, isn’t that an argument in favor of legalizing rape? (Regardless of whether you define “perceive cost” as the amount the victim would pay to avoid it, or the amount the victim would demand as compensation for undergoing it.)

Of course normally if the cost to one party is less than the benefit to the other party, the second party would just pay the first one in order to engage in the transaction. But maybe the rapist only enjoys the sex if it’s nonconsensual, so that rules out a consensual transaction as a solution.

(This argument is straight out of “More Sex Is Safer Sex”, asking whether one person ought to be allowed to torture another person, if the benefit to torturer is greater than the cost to the victim, but the first party’s enjoyment depends on torturing the other person *nonconsensually*.)

Case 3: Assuming that the girl was unconscious, rather than merely using a few beers as a rationale for banging the cool guys, then this is a clear case of trespass. Trespassers need to be deterred, regardless of whether they do harm. They threaten harm, they make harm possible, they are apt to do harm. If they do not do harm on one occasion, will probably do harm the next occasion.

Case 1: Old religion, no longer in theocratic power. Thus the state delights in offending those old fashioned people who still adhere to it.

Case 2: New religion, now in theocratic power, thus the religion is enforced.

Should that religion be overthrown, after the fashion of General Monck overthrowing the puritans, then people will doubtless delight in offending those old fashioned believers. Any polar bears that endanger humans by wandering too close to inhabited areas will be shot, and the rich and fashionable will decorate their homes with polar bear rugs.

I think the issue is largely one of property rights. Someone’s emotional distress is precisely relevant to the extent that they have a property right regarding the cause of that distress. Farnsworth McCrankypants does not have a property right over other people’s viewing habits, Granola (presumably) does not have a property right over Alaskan oil, and the rape victim does have a property right over her body.

Of course that then leads to the question of who gets what property rights. Fortunately we have Ronald Coase to tell us that it doesn’t really matter. As long as property rights are well defined, the optimal outcome will occur. So if the rape victim dislikes being raped less than the rapist enjoys raping her then the logical outcome is for him to pay her a mutually acceptable amount to waive her right (i.e. prostitution – assuming here that it is the sex that is desirable rather than specifically the unwillingness of the victim).

Similarly, if Granola and her ilk REALLY don’t want Alaska drilled, they could buy it. If they’re not willing to do that, it’s a fair indication that the oil company and its consumers are going to derive more benefit from getting that oil out of the ground than Granola and Co. are going to derive from keeping it in. And of course the same applies to McCrankypants. If he really wants people to not watch porn, he can pay them.

Of course to minimise transaction costs, the property rights should ideally originate where they are most likely to stay. Most women prefer not having sex with strangers to money (at least at the market price for sex), so it’s sensible that they start off with the right of refusal.

Let’s propose another scenario: Chantelle McChastity is an attractive female student at a North American university. She learns that some of her fellow students have been engaging in sexual fantasies about her, and is outraged.

This seems like an appropriate analogue to Farnsworth and Granola’s position. The harm is not only purely psychic, but it’s *bound* to be purely psychic. There is no risk of harm to Chantelle unless she is informed about it.

Compare this to the real-world situation of sexual assault, which runs risk of non-psychic outcomes (physical trauma, pregnancy, STDs, etc.) On this occasion the perpetrators (and victim) got lucky, but the law is about agency and action, not outcomes.

Those who break the speed limit are still violating a law, even if they’re not caught, or if their actions don’t result in the negative consequences that speed limits are meant to reduce. The perpetrators in the rape case violated a law, and a serious one at that. Even if we completely discount the victim’s psychic distress, saying “ah well, no harm done on this occasion” is not an appropriate response if that law is to function as an effective prohibitory mechanism.

The porn watchers and the Alaskan drillers are watching and drilling continuously and over time, whereas the rapists in Ohio, it seems, were not raping continuously and over time. Society has observed that raping unconscious women might be a good predictor of raping conscious women in the future and takes action to prevent that, but the porn watching and drilling “offenses” are already being perpetrated repeatedly over time.

As for the line about when someone’s psychic preferences should be accounted for, the classic Millsian test is whether there’s clear, assignable harm being done to them. In a vacuum, it’s pretty unclear where 3 falls in this test.

“Would you be willing to legalize the rape of the unconscious in cases where the perpetrators take precautions to ensure the victim never learns about it?”

Have you watched Joss Whedon’s “Dollhouse”? The over-arching premise is, in fact, not dissimilar to this. The obvious problem, in Whedon’s world as in ours, is that there is no way to guarantee either lack of harm or lasting amnesia.

Should we have laws against instances of drunk driving in which nobody is injured? I believe we should because of the increased chances of actual harm. So, for example 3, one of the reasons we need to discourage it, is that the fact that there was no physical harm or knowledge of the assault was a fortunate happenstance. The assault certainly increased the chances of physical harm (probably moreso than in the case of a drunk driver) and increased the chances of knowledge of the assault enormously (without an assault there was no chance of the victim finding out about the assault!)

I see no problem. In all three cases there is psychic cost. Why should the preferences of any of the aforementioned individuals not be considered for public policy? I would add that in all cases they are. The economic (political) issue is whether the psychic costs are big enough for enough people that a regulatory policy or criminal law passes a benefit-cost test (an electoral test).

Leah has it spot on. Many laws are made to insure that people don’t near a graver law being broken. The law against raping a conscious individual is extended into the law against raping someone who may/may not be necessarily conscious as well as witnesses/other means for the victim to find out and know psychological harm.
As for #s 1 and 2, the laws in the form of utilitarianism are important to note. To reject the freedoms of many over a rare distress is not a trade-off worth considering, though #2 does hint at an ecological consideration, which affects many (though not important because of Granola herself)

Should it be legal to fire a gun over the back of the head of a deaf person who would not consent if they were aware of your plans as long as you miss?

We’re resigned to a restricting personal choices when it comes to public goods (and public bads). Turning on a lamp on your own property invariably will result in photons leaving your property but society determines whether that is actually a public bad. Rape, however “safe”, only directly affects the victim, which means that individuals can have their own preferences about whether to press charges. We presume that people don’t want to be raped while asleep but if someone really doesn’t feel harmed by it, they don’t have to press charges.

We have jumped the shark. I will never understand why so many libertarians gravitate toward hypothetical examples involving rape. Note to libertarians everywhere: stop using hypothetical rape to argue a point. It only serves to turn people off of the entire discussion.

Think about it: Is it really even necessary to make a logical case against – or, worse, in favor of – rape?

To answer the questions:

1) No, because Farnsworth is being harmed by his own thoughts, not by anyone’s actions.

2) This is not really a fair telling of how Granola actually feels. How she actually feels is that the destruction of a far-away environment causes her harm that can be directly attributable to the environmental damage. If she can prove this conclusively, I don’t think any change is public policy is necessary; she may simply sue for damages. The fact that she cannot prove her case is why she resorts to public policy changes. This is unreasonable.

3) Being raped while unconscious is not even REMOTELY comparable to being bombarded with photons. This is obviously different from Question #1 because in the first case, the person was being psychologically harmed by his own thoughts, and in this case the victim is being physically assaulted and abused by someone else, irrespective of her psychological awareness of it.

But why stop here? Should we be allowed to sexually assault people who are in comas? How about people in a vegetative state? If someone had the inability to remember things beyond 5 minutes ago, could we cut his arms off and later inform him that he was born that way?

My main criticism against The Big Questions (the book) was its extreme take on Consequentialism. If the ends are the only things we care about, then any means will seem valid. Hence, Landsburg reaches clearly objectionable conclusions such as that it would be reasonable to kill one man in order to prevent the rest of the human population from getting a headache. Landsburg contrasts consequentialism to deontology and usefully demonstrates the former’s superiority. But there are other options, such as utilitarianism or virtuistic eudaimonism, which resolve many of the apparent conflicts that are created by relying too heavily on consequentialism.

You are -purposely- not clear about the third point, just to do this provocative post.

Hey, if you rape a girl and never she or anyone is aware of it, yep basically 3 is the same as 1 or 2. But a perfectly unnoticeable rape is impossible.

“If we legalize the rape of unconscious people, we will create an incentive to render people unconscious.”

Bravo you discover human is a rational creature. By the why that’s why (good) laws sanction acts and only acts.

“would you be willing to legalize the rape of the unconscious in cases where the perpetrators take precautions to ensure the victim never learns about it?”

You are out of your mind !! Making such complex loopholes are destroying the law itself. How the judges are going to apply it? Oh, the aggressors made sure she did not notice the rape. But someone else noticed and told her. Too bad. Let’s sue the guy who informed her.

In fact laws have been destroyed by people like you, trying to adding useless and contrived special cases. The effect is always bad, as human are rational and adapt, and as law became to big and complex to be known completely by anyone.

Whenever some guy propose a stupid law, I just ask one thing, that it should be applied on him first. So you can enjoy being raped (by a man of course) and struggle in court because the rapist uses your own loopholes.

On #1 and #2, I think that polite consideration of irrelevant but expressed preferences is part of the grease that makes democracy function and reflects epistemological humility. That is: neither Granola nor McCrankypants is likely to express their desire as merely a psychic cost, but as reflecting some higher principle. The humility comes in giving some (small) weight to these principles, because of the governing principle of republicanism itself: that every citizen’s voice matters.

Functionally, we do this. Nobody’s completely happy with environmental law at any given time.

However, I think that if one were to argue me out of #1 & #2, there are deeper principles that apply to #3.

I think the implicit mistake one might be tempted to make on #3 is to assume that Benthamite ethics are the only ones to consider. But that’s begging the question. Personally, I’m no utilitarian, so the utility derived from raping someone really has no bearing at all on my ethical views. Given that we individually & socially have some degree of choice over our governing ethics, dilemmas like this can be used to accept or reject particular theories. I see this as a good reason to reject pure utilitarianism.

Other versions of the same question that might be even thornier:

(4) Should sexual relationships between consenting minor siblings be illegal? Should sexual relationships between consenting adult siblings be abhorred (whether legal or not)?

(5) Should Koreans stop publicly consuming dog meat when large numbers of foreigners with psychic attachment to dogs are likely to observe it?

The last question comes up when South Korea hosts international competitions (FIFA, Olympics): through a mixture of cajoling and legislating, the government tries to keep dog meat consumption out of sight. In this case, there’s a financial interest in play: grossing out dog-loving sports fans will hurt the country’s image.

And if we really want to get nasty, how about:
(6) Unpleasant homeless people should be euthanized.

If you take the virtues of democracy as a given (which I don’t thanks to your first book), then I think taking everyone’s psychic preferences into account. That includes those that get psychic pleasure from knowing that porn is available freely, that people are drill baby drilling, and that rapists under any circumstances spend time in jail.

Society will probably (guessing here) end up deciding:
1) Adult porn should be freely available to every adult always
2) Drilling for oil should be done selectively with as little damage to the environment as possible and while we’re at it, let’s find alternatives (possibly nuclear)
3) All rapists should go to jail

I am generally in agreement with those who are advocating a private property argument for saying 1. No 2. No 3. Yes

You did bring about one challenge to that argument though your porch light example. So what is different between photons penetrating your body and someone raping you without bodily harm?

I believe it is consent. Use of your property always requires consent, whether implied or expressed. In the area of lighting, the photons traveling beyond your property and onto someone else’s would be considered an easement.http://en.wikipedia.org/wiki/Easement#Implied_easement

I’m certainly not a lawyer, so there might be other factors that allow lighting to an automatic easement, but I think in this case it is prior use.

I don’t see how inserting a part of your body into another person without their consent would ever be considered an easement.

All of the arguments here rely heavily on a number of flawed assumptions. Perhaps #2 doesn’t intend to go hiking, but is sympathetic to the many that would. #3 assumes that the victim wasn’t traumatized simply because she didnt know about it while it was happening-I think her morning panic and questioning of her assaultors evidences that she was very negatively impacted, even before she learned of the assault. And I agree with the other commenters that using hypothetical rape to make an argument is a cheap ploy, and not likely to be convincing even without the logical flaws.

I think the difference is practical. The condition you’ve specified in the questions (that the only harm is psychic) is harder to ensure for Question 3 than for the other two. Therefore, people deciding to engage in the rape of the unconscious are more likely to mistakenly harm someone (non-psychically) than are people deciding to, say, watch porn in the same universe as Mr. McCrankypants. And that’s why there oughtta be a law against raping unconscious people. I think.

Of course, if potential rapists read your suggestion in E, that could mitigate the problem…

A more extreme example of Question 1 is the case of the “Cannibal Cop” here in New York. He was convicted a fantasizing about cannibalism, even though he never took steps to harm anyone, and even added comments to his fantasies that they were just that.

It appears that in the U.S., some things are just so icky that Farnsworth’s concerns are paramount.

“It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies. Every time someone on my street turns on a porch light, trillions of photons penetrate my body. They cause me no physical harm and therefore the law does nothing to restrain them. Even if those trillions of tiny penetrations caused me deep psychic distress, the law would continue to ignore them…”

Much of our law (that is, unwritten and written law or social norm) is derived from one simple rule, the Golden Rule. That, I believe, is a key source of the property rights that we recognize and respect.

Because the vast majority of people in our society respect this rule, that, thankfully, keeps us from accepting rape — no matter the consequences — as a social standard.

I don’t believe that is true for all societies. In fact, there are sub-segments of our own society that do not recognize this. I learned a few years ago about a family/cult where it was accepted for decades for the men to rape the women in the family. It eventually stopped when one of the women got out and appealed to the norms of greater society.

Also, since nobody (or at most very few) recognize light reflection as a harm, it has not ever been considered as part of the golden rule and has never made it into our social norms. Anybody who considered reflecting light as a harm would like be thought to have mental problems. Also, they could easily avoid this harm by staying in a dark room.

2) As well as psychological harm, Granola is deprived of the opportunuty to visit the pristine environment, or to see recent pictures of it. The future is unknown, so we cannot know whether this opportunity will be realised or not. Therefore case 2 is different form case 1.

3a) If the victim were to remain totally unaware, and suffer no physical harm in any way, then the victim has suffered no harm.

3b) Once the victim becomes aware, then they suffer harm in a similar way they would have done if they were aware during the rape. It “feels” obvious that this is different from case 1, but why is this?

The issue has similarities to how we treat the wishes (and bodies) of the dead. The logical reason is because if we do not uphold the wishes of the dead, this distresses the living who want their wishes to be respected after death. I think most people respect the wishes even if nobody else would ever know.

It seems unlikely that rape victims will usually remain ignorant and suffer no physical harm. Thus in the real world it remains a good policy to punish rapists whatever the status of their victim. But that still leaves the question open.

If I were a high caste indian from 100 years ago, perhaps I would feel disgust at being touched by an untouchable, perhaps in a similar way to the rape victim. Most people now would put that in the same catagory as case 1, but put the rape in a different catagory. Possibly, most Indian citizens 100 years ago would put it in the same catagory as case 3. I am not saying this would actually be the case, but this sort of example illustrates how cultural norms of this type can be deceiving. We think of some things as intrinsically wrong, but the reasons for this may be uncertain.

I think RPLong has it just about exactly right, particularly as concerns the strawman comparison with photons.

A more interesting (and difficult question) might be the comparison of involuntary criminal assault (including rape) and the involuntary application of an invasive medical procedure (e.g. an unconscious person after an accident must be given a pacemaker which is in contravention of their religious or moral beliefs about how life should be). What makes these two cases more similar, and what makes your rape case incomparable to the others is that it ignores issues of personal autonomy.

If I accept your hypotheticals then I find it hard to draw a case where Farnsworth and Granola are denied their personal autonomy and self-determination. A rape victim is denied such a thing, whether or not she is aware or conscious of the assault at any point. I don’t understand why your decision-making framework doesn’t include this concept. To me it is a very bright line.

One other place that I would diverge is that in questions 1 and 2 I would not entirely discount the individuals’ feelings. Part of the social compact is the joint determination of acceptable action, regardless of cognizable harm. To take a trivial case, a group of homeowners may (and legally do) establish a compact that limits the colors members of the community may paint their houses. I dislike such things, but I recognize the rights of those homeowners to set a community standard and ask people to abide by it. Again, such standard-setting is subordinate to personal autonomy principles, so compacts that exclude people on bases such as religion, skin color, orientation would not be permitted.

This principle is not clearly drawn in law, and hard cases make bad law, but this is generally how we seem to have organized things. I do not, as a general rule, like it that we allow men-only clubs but I have a hard time objecting to the Catholic rule that says only people of a certain religion may be members of their priesthood. These sorts of exceptions do not convince me that social compacts ought to be allowed to be drawn to reflect widespread sentiments of those who choose to be governed by those social compacts.

Simon: “And yes, rape is not a special law, this is about the ownership of your body. But I guess the ownership concept is too simple and efficient for “smart” people.”

Well too simple and efficient for me anyway. Can I infect myself with some new supervirus and go about with my body in public as usual? The attempt to portray all rights as property rights is not convincing. There are lots of things about various rights we have that do not match up to the properties of property rights. An example. Can I sell my right to a fair trial in criminal court? Can I lose it in a *civil* suit so that later when charged with a crime I no longer have it? Can the DEA seize it if I use it in furtherance of my criminal career? These are things that can happen to my *property*. We don’t want them to happen to the right to a fair trial; that is not a property right.

Clearly one distinction between Scenarios 1, 2 and 3 is that Scenario 3 arguably/potentially involves a privacy affront: a private individual has been associated with an event without her permission. In contrast, few people will associate the problems of pornography or the spoliation of the Alaskan wilderness with either Farnsworth or Mustardseed.

Scenario 3a: What if no one ever learns about the sex in Scenario 3? As far as I can tell, there are no legal consequences for events no one ever learns about.

Scenario 3b: What if people DO learn about the sex, but not the victim (because she has subsequently died, or now lacks capacity for understanding, or is on a one-way trip to Mars and is beyond radio contact, etc.)?

This scenario raises the question, “To what extent should we regulate (arguably) harmless behavior as a means to regulate harmful behavior?” As others remarked, we confront this question when we prohibit drunk driving rather than drunk bad driving. We confront it when we prohibit private ownership of nuclear weapons rather than merely private misuse of nuclear weapons. We confront it when we bar solicitation for murder rather than just barring the murder.

In short, Scenario 3b arguably justifies a social (that is, criminal) sanction against the rapists. But does it justify a private sanction (that is, a suit for damages for assault & battery, etc.) as well? That is, should the rapists be subject to private suit by the family of the rape victim? After all, the harm suffered by the family seems pretty similar to the harm suffered by Farnsworth.

Scenario 4: Combine Scenarios 1 and 3 – To what extent does a person have a right to be secure from having others think about her in a sexual way? To what extent does she have a right to be free from having others acknowledge to her having such thoughts? Here we combine porn with a privacy concern.

Sure, I know of no legal or practical mechanism to limit people’s thoughts. This is really a question about social norms and informal social sanctions: How forthright should we be about the fact that we have sexual fantasies about others — specific others who are not public figures?

I’ve drawn the conclusion that 1) it is naive to assume that no one is harboring sexual fantasies about others people, 2) it MAY be appropriate to acknowledge this dynamic in general (as I am doing right now), and 3) it is rarely appropriate to acknowledge this dynamic in specific, unless you are intended to initiate a more intimate relationship. People sincerely dislike knowing that they are the object of other people’s sexual fantasies – unless the attraction is reciprocated. And perhaps not even then. And in the absence of social norms discouraging this kind of speech, women may find themselves deluged by it.

Thus we have a social norm of tacit hypocrisy: We know that people have these fantasies about each other in general, but it’s antisocial to acknowledge this fact in specific. In practice, social norms defend peoples’ (especially women’s) right to live in ignorance about other people’s thoughts.

Really, no need to let #3 be such an airy hypothetical. We can easily make an empirical test of this! Just say the word, and I will procure the rohypnol, the muscle relaxants, the video cameras and the cheesecake. (No fair telling you when the test commences though: the element of surprise is key.)

I think I object to the assumptions in the meta question: “If your answers to questions 1, 2 and 3 were not all identical, what is the key difference among them?” Why does there have to be a key difference? There are already hundreds of differences. If I had to pick a “key” difference, I would say that rape exposes the victim to the risk of STIs. However, I sense that my opinion would not change if all the STIs were cured, so that’s really just one of many important differences.

If you keep asking “why” about someone’s opinions, eventually you will reach some root opinions for which they cannot give reasons. For John Galt, the principles were “A is A” and “I choose to live”.

Perhaps my core principles are:

1) A is A
2) I choose to live
3) Rape is wrong
4) I reserve the right to add more core principles.

I guess I’m just skeptical that you can reduce all of morality down to some sort of algorithm or proof. I’m skeptical of the idea that there have to be key differences to explain why you react differently to different things. It would be cool if you could do those things though.

The enforcement of every law depends on someone being aware of the crime. We don’t need to have special provisions in laws about breaking into homes that make exceptions for intruders who only want to sit in comfy chairs without waking anyone up before cleaning up and locking up. Laws are irrelevant if no one is aware.

Acts against unknowing victims can be criminal if it is reasonable to expect the person would not consent they were if aware. This is why we have age of consent laws. We protect people who are unable to consent.

The key difference, as some have pointed out, is that in case 3 there is a violation of private property, whereas in cases 1 and 2 there is not.

“As long as I’m safely unconscious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits?”

Violation of private property matters whether any harm is done or not. If you drive off in my car while I sleep and return it in the same condition, such that I would never know you had used it, you may not have caused me harm–but you may have noticed the ounce of cocaine I keep in the glove box for a rough day, or my client’s personal information I had sitting in the passenger seat in preparation for our meeting tomorrow morning. In the case of one’s body, you may have seen evidence of venereal disease or some genetic abnormality. It seems to me that the expectation of privacy trumps the benefits accrued to those who use private property without consent.

You have also violated my revealed preference that nobody use my property when I am not using it. If I wanted to loan out my car or my body while I am not using them, there is nothing preventing me from doing so (at least for the car there isn’t, the body is trickier). The fact that I have chosen not to do so indicates that I prefer they not be used, and if you accept the premise that I have a right to control the use of my private property, you have answered the question quoted above.

Just looking at behavior; Farnsworth in #1 might find the existence of porn offensive, but what’s he going to do about it if we don’t ban it? Not much. Mostly he’ll complain to his like-minded family and friends.
What about Granola if we don’t ban oil drilling? Again, nothing much.
What about Petunia the partier if we don’t ban passed-out rape? She’ll go to less parties and party less hard. Et voila, real world consequence.

In scenario 3 Steve asks if we should outlaw unconscious rape. This is a different question than he asked in scenarios 1 and 2. In those cases he asked if Farnsworth’s or Granola’s distress should matter in the decision. The analogous question in scenario 3 is, should Steve’s reaction to Barb’s rape matter in the decision?

So you can answer the question Steve asked Yes without problem if you answer this question No.

I answer both these questions Yes, so my answers are to Steve’s are(like most here) no, no, yes.

I think the main difference is not respect for someone’s body, but respect for their wishes and choices. I don’t turn my wishes and choices and hopes off when I fall asleep. This position is not very widely shared on TBQ. Some will recall the discussions about Sierra Black, where many here were willing to sacrifice respect for her wishes, her choices– sometimes ironically on the basis of demanding from her some “respect” for her body.

If you base your moral thinking on the idea of persons as independent moral agents, who are allowed wide lattitude in their choices then it is not a conundrum. Her wishes and choices exist even while she sleeps, and demand respect and protection.

For the posters invoking private property, let me change part of Landsburgs post to this:

It is, I think, a red herring to say that there’s something peculiarly sacred about private property. Every time someone on my street turns on a porch light, trillions of photons penetrate my private property. They cause it no physical harm and therefore the law does nothing to restrain them. Even if those trillions of tiny penetrations caused me deep psychic distress, the law would continue to ignore them, and I think there’s a case for that (it’s the same as the case for ignoring Bob McCrankypants’s porn aversion). So for the issues we’re discussing here, private property penetration does not seem to be in some sort of special protected category.

As far as I can see, you all are arguing that private property is something sacred in and of itself that ought not to be violated.

You are approaching these issues from the wrong direction. This is not how laws are made, i.e., we do not make laws based on very specific individual cases.

Rather, we make general laws for big, general reasons. Then, when we have dealt with the big issues, we decide if it is worth making exceptions for specific cases. There is a general resistance to making exceptions because the law becomes costlier to execute as it becomes more complicated, and the exceptions we allow can be abused.

For porn, we are primarily interested in its large-scale effects on society. Farnsworth’s aversion to porn is one manifestation of the idea that porn is (or may be) generally deletorious to society in various ways. We don’t really care about Farnsworth’s feelings themselves, but we do give them some weight as they provide evidence that some people think porn can be bad.

For the wilderness question, we balance the benefits of oil with the benefits of wilderness. Some people do, actually like to hike in the wilderness and there is a general feeling that there is a danger to tampering with the ecosystem. This should be given weight. If everyone was a Granola, then we would give zero weight to hiking considerations because there would be no hikers. The existence of Granola’s feelings are somewhat interesting because they suggest that some people like hiking (although all of them may not actually hike). If no one actually hiked, we wouldn’t really care much that some people like the idea of hiking. The other consideration, that not disturbing the ecosystem is a benefit, doesn’t depend on people hiking. These people’s feelings, therefore, count for something on this issue because they are evidence that there might be some value to not disturbing the environemt — perhaps future generations will benefit.

In the case of rape, we have a big reason to discourage unambiguos rape. We therefore make simple rules saying “you can’t rape people.” We then have some judgments to make about how much coercion is required before we call it rape (the date rape issues). Now, you raise the issue of a very narrow carve out for non-consensual sex when the victim is unconscious. This is such an uncommong, hair-splitting issue that we don’t give it much consideration because the big issue is much more important. If we did make an exception for it, it would be rarely applied, and it would give genuine rapists another defense that we don’t want them to have.

To summarize: these questions can’t be debated in isolation. Each has to be considered in the overall context of what we are trying to achieve in the larger legislative issue.

I struggle to devise a framework for thinking about these hypotheticals.

I. Honoring preferences vs. maximizing social welfare

At various times, Landsburg has posed hypotheticals about respecting the wishes of the dead, or of people who would be dead shortly. (E.g., Choosing between 1) a 50% chance of killing 100% of humans, or 2) a 100% chance of killing only 50% of humans. Or choosing between 1) killing both members of a loving, childless couple, or 2) killing one member of two loving, childless couples, when all concerned claim to prefer the latter option.) Somewhat analogously, here we are asked to weigh the preferences of a person who is, for practical purposes, dead when people are deriving benefit from her body.

Many of these hypotheticals cause us to trade off policies that would honor people’s (stated or implied) preferences vs. policies that would (apparently) maximize social welfare. I often find myself leaning to the social welfare maximizing side – but not always.

So which is worse: A) A person(‘s body) being raped, even if the person never becomes aware of the fact, or B) Trinity having the simulated experience of being raped as part of the Matrix? In other words, do we object to the EXPERIENCE of being raped (regardless of the facts), or the FACT of being raped (regardless of the experience)?

II. Externalities.

Arguably, someone who is raped but never experiences it provides a benefit to others, even without consenting to do so. This is the nature of positive externalities.

What rules should we create regarding externalities? We typically have asymmetric policies – seeking to have people provide compensation for their negative externalities, but not requiring society to compensate people for their positive externalities. Should different rules apply to the current context?

It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies. Every time someone on my street turns on a porch light, trillions of photons penetrate my body.

I don’t think this is a red herring, nor do I think your porch light example sheds any light on the subject. I think a far more practical comparison would be this:

Someone breaks into your house, watches TV, uses your shower, or any other number of trivial things that you wouldn’t be aware of, basically taking advantage of your absence to enjoy himself. This is no way hurts you. You would not have voluntarily have let this man into your house and used some of your things, but you think if you didn’t know about him breaking into your house and using your stuff (in no way damaging or abusing anything), it’s totally cool? You don’t think ownerhip issues will come up?

Also, light from porch lights are known to not be in any way dangerous or have undesireable consequences to your neighbors. The most these lights would cause are mild annoyance, easily solvable by closing blinds or asking your neighbor to turn off the light.

I think your rather flippant disregard for your own body being sacred is fairly ridiculous.

1: Peter engages in X action which has an incidental secondary effect on Paul’s property
2: Peter engages in Y action which requires the use Paul’s property

When you turn on your porch light, you are not using my body as a target for your photons—you are seeking the benefit of the light. Any effect of the photons on me, psychological or otherwise, is incidental. When you use my unconscious body for your pleasure, my body is not incidental, but integral. If I were removed from each scenario, you would still turn on your porch light, but you could not derive pleasure from my body. I believe the difference is both self-evident and significant.

With scenario 1, whether or not we allow Paul to constrain Peter’s action X is determined by the nature and the extent of the secondary effect of action X on Paul’s property. With scenario 2, in all but a few cases, we recognize Paul’s right to constrain Peter’s action Y.

Steve’s questions 1 and 2 fall under my scenario 1; his question 3 falls under my scenario 2. There is a meaningful difference, and it is perfectly consistent to give a different response to question 3 than to questions 1 and 2.

I can almost imagine an xkcd where you’re on a drawbridge with several questionable Rube Goldberg contraptions that you can’t figure out. The bridge is opening, there are several children playing near the opening, there’s a ship that looks like it might hit the bridge with 100′s of people on it, and you see Steve Landsburg coming towards you all smiles. Next panel, Landsburg is laying dead and you say to the officer, “I had no idea what was going on, but I’m pretty sure he was going to kill me.” The officer then replies, “Yeah, you’re probably right, you’re free to go.”

Some commenters have suggested that Question 3, unlike Questions 1 and 2, involves a violation of property rights. This seems entirely wrong to me; Farnsworth wants to restrict my property rights by telling me what sites I can visit on my own computer; Granola wants to restrict the property rights of Alaskan leaseholders who want to drill for oil; my rapist wants to restrict my property right to control access to my body. The key question is: Which property rights do we want protected by public policy, and under what circumstances — and, of course, why.

Frankly, I’m surprised that anyone would discount the psychological harm.

Suppose, for example, that I lose a leg, but it doesn’t bother me at all, nor does it bother anyone I know. No harm done, right?

In reality, the law recognises psychological distress as a form of harm. If you disagree, well, do you really feel “no harm is done” when people are rude to you, or the TV is unplugged just before the touchdown, or an otherwise nutritious meal tastes bad?

The way to resolve the Farnsworth vs More Serious Harm issue is not to deny that Farnsworth suffers real harm, nor to deny that there is an externality here. Rather, the answer to the Pigovian claim that Farnsworth’s suffering must be dealt with via taxes or restrictions etc is to Coaseanly argue that we need to consider all pros and cons before deciding whether to side with Farnsworth or not.

At 54 it looks like you’ve answered your own question. Farnsworth, Granola, and the rapist all want to restrict your property rights. Shouldn’t the burden be placed on these three to argue for the restriction of property rights, rather than the other way around?

Ken: Ah! I misspoke, and am correcting the edit in the post. What I meant to say is that in each case, there is a disputed property right — a dispute over who controls my computer, a dispute over who controls the wilderness, a dispute about who controls my body. To appeal to a “respect for property rights” solves nothing, since in each case the entire dispute is about what the property rights should be in the first place.

#3 is a special case, and I would say goes beyond disputed property rights. Basically, the sexual consent thing is a deeply personal issue that could be argued originates from natural rights, or evolution etc., where the control over ones own sexual consent and therefore reproduction is pretty much hard-wired to be one of the most deeply guarded human issues.

We don’t need any property rights arguments in order to discuss sexual consent at all – it’s way deeper than that – it’s biological.

the enjoyment someone derives from bad things shouldn’t be included in a cost benefit analysis. therefore the enjoyment someone receives from raping someone is not included and the rape has no benefits even though the rapist enjoyed the act at the time. instead we should educate people that such horrific acts are deplorable. hopefully the rapist will feel remorse in the future and as such the rape has negative utility.

this is similar to Steven landsburg’s views on other subjects, for example free trade. Steven argues in favour of free trade because economic theory says it is usually beneficial. however a lot of people are against free trade. if we included people’s free trade fears it is possible that the negatives would outweigh the positives and free trade would fail a cost benefit analysis. instead an economist like Steve should educate people about free trade’s benefits.

Steve, your computer is not Farnsworth’s property. Likewise, your body is not a rapist’s property. McMustardseed’s complaint is potentially over a public good (if no one owns that wilderness). I think the government should only have a role in the provision of true public goods and regulation of public bads. No reasonable person would think that your orafices become public goods when you are not conscious.

To the man with a hammer, everything looks like a nail. To a libertarian, everything looks like a property rights issue.

Even people who would conclude that the rapists did no harm and might warrant no punishment would be loath to conclude that the rapists had acquired the right to buy, sell, or destroy the victim’s body.

I sense the issue Landsburg is driving at is beneficial use, not ownership per se. Yes, beneficial use is ONE property right. But, as I noted above regarding positive externalities, we recognize that people derive beneficial use of property without every attributing ownership rights to them. We can all enjoy the scent of the fresh-baked bread at Subway or cat videos on YouTube without ever claiming a property right in them.

In sum: I like to maximize social welfare, thus I like provide mechanisms by which people can maximize beneficial uses. Where this is consistent with an owner asserting an absolute right of exclusion, that’s fine. Where it isn’t, well, that’s not as fine. For me, maximizing social welfare generally takes precedent, and respect for exclusive control by property owners is merely a rule of thumb that tends to promote the larger goal, but is subordinate to it.

We’ve been discussing a hypothetical that puts my preferences to the test, because I value bodily autonomy. In a highly stylized world, I could acknowledge a no-harm/no-foul rape – and, for all I know, such rapes actually happen in the world we experience. (Which of us can say we haven’t been victimized by such rapes, given that one characteristic of the rape is that you never knew it happened? Thus, which of us can claim to have been rendered better or worse off as a result of events we never knew happened?)

But ultimately this argument becomes recursive: It’s only a no-harm/no-foul rape if no one who objects ever learns about it. Once someone who objects DOES learn about it, we need a different analysis. And because, in the world of our experience, a would-be rapist can rarely know that no one who objects will ever find out, the rapist needs to apply that different analysis before he acts. Thus, any conclusion we might draw about a no-harm/no-foul rape can only apply at the end of time, when we can safely conclude that no one who would object ever found out. In other words, the analysis is pretty hypothetical.

I’m a little surprised that in this room the answers to #1-2 are so monolithically “no”. I would think the honest utilitarian is required to factor the disutility of “psychic harm” into the cost-benefit, even if one personally disapproves of the source of that harm. (I believe I’ve heard here that we’re even supposed to account for the utility of murderers?) I would note the counter-arguments SL mentions on this point here seem basically of the ‘practical’ variety.

Or is it that questions like this do illuminate a certain affinity for pure “liberty rights” after all? Hope springs eternal!

Sorry, I have a correction “I think the government should only have a role in the provision of true public goods, regulation of public bads, and enforcement of property rights.” I’m going in circles but I’m trying to figure out how to distinguish between regulation of public bads and enforcing self-ownership. Is your neighbor’s light’s photons a public bad or is it a direct infringement of your self-ownership?

In summary, a woman complains to her insurance agent that she is not earning interest on the funds in her checking account. The agent suggests that she turn the money over to him, and he will ensure she earns some interest. The customer gives the agent a check for $2,500., which he deposits into his personal money market account. A few months later, she asks for her money back, and he pays her $2,597.09, which works out to about 1.6% interest.

The agent is charged with securities fraud, and as part of a plea deal he has to surrender his license. Why? Because he COULD have stolen her money, even though he did not, as he did not follow proper accounting rules.

First, I think those who are making property rights arguments aren’t doing so because they think property rights are “sacred,” but rather that their favorite philosophers often invoke property rights to resolve apparent conflicts between individuals. That is, if you accept that ownership of one’s body is the basic and most inviolable form of property rights, then Question #3 is absurd: We need not consider the psychic harm or lack thereof, because the victim was physically violated in any case. I think this point is actually very important, and those criticizing it should think twice about doing so.

Second, I think Questions 1 & 2 reflect existing psychic issues, whereas Question 3 is the direct cause of one. It begs the question: should it be against the law to cause purely psychic harm to someone? The answer is yes, of course we should forbid it. There are infinitely many ways we can cripple our fellow human beings by inflicting purely psychic harm. Victims of this kind of assault often report that the psychic harm is much more terrible than the physical harm, and one can hardly blame them.

But not all psychic harm is equivalent. There is a big difference between irritating someone and psychologically damaging them, just as there is a difference between a paper cut and a severed jugular.

THEREFORE:

* The unique aspect of Question 1 is that the psychic harm is self-inflicted.

* The unique aspect of Question 2 is that there is a burden of proof that rests on the sufferer to demonstrate the reality of physical harm.

* The unique aspect of Question 3 is that the victim experiences untold and incapacitating psychological distress at the hands of another human being.

Great provocative thought experiment, like so often from Steve.
The trick is, I think, that the 3rd question reflects a situation, unlike the former two, where the situation is so “idealised” as to be totally unrealistic. Which makes open minded thinking about it quite difficult.
So my answers would be yes, yes, no. Because of the way (my) mind works, the knowledge of unconscious people being rutinely raped would make me much much deeper trauma than in case 1 (no trauma at all) and 2 (minor unease depending on few other parameters).

Scenario 10 (I’ve lost count): A meteor strike creates a shock wave that triggers 1) a huge number of otherwise healthy people to drop dead, and 2) a huge number of people to incur organ damage, resulting in a surge of demand for organs to transplant. The government starts a crash program of harvesting organs from the dead, regardless of the stated wished of A) the now deceased and B) their next of kin/friends.

This scenario has certain parallels to a scenario in which someone is raped but never comes to know of the event, but who has next of kin/friends who do come to learn of the event. In each event, the invasion of bodily integrity benefits someone without the embodied person’s consent. And in each event, objections come from 3d party observers, not from the person whose body is at issue.

Some commenters have suggested that Question 3, unlike Questions 1 and 2, involves a violation of property rights… To appeal to a “respect for property rights” solves nothing, since in each case the entire dispute is about what the property rights should be in the first place.

I don’t think is right. If you phrase the original dispute in terms of property rights, the dispute is about whether one has a property right in being free from psychic harm.

Claiming that the dispute is “about what the property rights should be” describes it with an excessive level of generality. The dispute is about whether one particular type of property right exists, not about property rights in general. Answering “no, but another type of property right (in one’s body) exists instead” does, in fact, answer the original dispute without raising the same question that it answers.

I also don’t buy the “trillions of photons” argument. It’s okay to violate another’s body by sending photons because the extent of the intrusion is de minimis. Steven seems to be saying that it’s analogous to the rape example because the amount of harm is deminimis. The amount of harm is not the same as the extent of the intrusion.

Furthermore, Steven seems to be implying that the extent of the intrusion is not de minimis because the photons number in the trillions and “trillion” is a big number. Needless to say, photons are very small things, making the extent of the intrusion small even if the number of individual photons is big.

“Farnsworth wants to restrict my property rights by telling me what sites I can visit on my own computer; Granola wants to restrict the property rights of Alaskan leaseholders who want to drill for oil; my rapist wants to restrict my property right to control access to my body.”

I realize that you have revised this comment, but I think you made a mistake here which is telling, and I’m not sure you even realize that you made it. Here is what you said, rephrased to draw distinction to the mistake:

You see what you did there? You switched the last one around to make it fit with the other two. What you should have said in the third case, in order to be consistent with the first two, is:

I (VICTIM) want to restrict the rapist’s (PERPETRATOR) rights to my (VICTIM) property

When you state it this way, sans your little switcheroo, I think it is obvious that 3 is different. In cases 1 and 2 the victim of psychological harm wants to restrict how the perpetrator uses the perpetrator’s own property; in case 3, the victim of psychological harm wants to restrict how the perpetrator uses the victim’s property.

“Some commenters have suggested that Question 3, unlike Questions 1 and 2, involves a violation of property rights. This seems entirely wrong to me; in each case, there is a disputed property right.”

I’m not sure that it’s relevant, but I feel compelled to point out that you are conflating violated property rights with disputed property rights.

I stated earlier (#38) that 3 involves a violation of property rights whereas 1 and 2 do not. I think we all agree that 3 does involve a violation of the rape victim’s property–where we seem to differ is that you regard cases 1 and 2 as violations of Farnsworth’s and Granola’s right to not be psychologically distressed by others’ actions which have no direct effect on Farnsworth and Granola. I reject the notion that this is a valid property right, and so stand by my previous statement.

Even if we grant the (absurd) premise that Farnsworth and Granola have a right to be free of psychological harm from actions which do not affect them, 3 is still meaningfully different, and this can be shown by a slight revision of my initial statement:

“The key difference is that in case 3 there is a violation of TANGIBLE private property, whereas in cases 1 and 2 there is not.”

Farnsworth and Granola have suffered a violation of their right to an intangible distress-free mental state; rape victim has suffered a violation of her tangible body, in addition to a violation of her intangible distress-free mental state. There is no room for debate here–the tangible harm in 3 makes it different from 1 and 2.

There is room to debate whether this difference is meaningful, and I think that it clearly is. To argue that it is not meaningful is to argue that:

2. Two violations of property (the rape victim’s body AND psychology) carry no more weight than a single violation of property (F&G’s psychology)

3. All violations of intangible property carry equal weight whether they have evidence to support their existence (rape victim’s tangible property violation supports the legitimacy of RV’s psychological harm) or not (F&G have only their word that they are psychologically harmed)

I would argue that all valid rights are property rights and logical extensions of property rights.

Taking your examples:

1. No, you cannot infect yourself with a supervirus and transmit it to others any more than you can slip cyanide into another’s drink; this harms their body. I’m not sure where the grey area is here, perhaps I’m missing something.

2. Your right to a fair trial is an extension of your right to your own freedom. A fair trial is not an end in itself–if there is no challenge to your freedom, your right to a fair trial is irrelevant.

I haven’t put a lot of thought into this, but at present I can’t come up with a legitimate right which isn’t directly traceable to a property right. I welcome suggestions.

Before I begin, is labeling a particular action ‘X or Y’ really necessary?

Second, you missed the point of the post.

When you turn on your porch light, you are not using my body as a target for your photons—you are seeking the benefit of the light. Any effect of the photons on me, psychological or otherwise, is incidental. When you use my unconscious body for your pleasure, my body is not incidental, but integral. If I were removed from each scenario, you would still turn on your porch light, but you could not derive pleasure from my body. I believe the difference is both self-evident and significant.

You beg the question why the body (or for the matter, private property) is something sacred that ought not to be violated.

With an approach like this, one wonders why murder should be so despised and looked down upon.

After all, a photon is no different from a knife to you, right? It ought to be quite quick, perhaps – to avoid pain (although why that pain ought to be distinguished from psychic pain I don’t know). But we can specify that the murder victim must be unconscious too.

And unlike the unconscious rape victim, the murder victim never has the downside of ever finding out what happened in the future!

I second RPLong’s request–PLEASE stop using hypothetical rape examples. This is not helping libertarianism, trust me.

As for #3: In this case, the victim did not suffer from disease, pregnancy, or other physical harm. But she unwillingly was exposed to the probability of suffering from these things!

To put it in even crasser terms, the expected value (in welfare terms) of the attacker’s action was clearly negative to the victim, even if it didn’t actually result in harm in this instance. (There’s also a chance the victim will awake during the attack as well).

If I play Russian roulette with your head while you’re sleeping and the gun doesn’t go off, is that kosher too? I would think not.

We punish rape not just because of the damage, but because we believe it is wrong. We believe the psychological damage is reasonable because rape is wrong, and in a circular way we believe rape is wrong in part because of the psychological damage.

If we compare it to my earlier hypothetical of a society where there are untouchables. I won’t say that this is India, because that does not quite fit, but historically untouchables could be punished for certain acts: “It was a criminal offense for a member of an excluded caste knowingly to pollute a temple by his presence” (Cohn and Singer 1968: 304). It is not too far a stretch to imagine a society where an untouchable could be punished for touching someone of a higher caste.

This society would probably view being deliberately touched by an untouchable as something very similar to how we view rape. The victim would feel polluted and suffer significant psychological harm. If the victim were unaware of the status of the toucher, they would suffer no harm.

How should an untouchable be treated if the victim is unaware? In such a society, they would probably be punished for touching – certainly for disguising their status. Generally, the hypothetical society would agree with such punishments. They would view the psychological harm as reasonable.

Now what should happen if a high caste member of this society visits the USA and is touched by an untouchable? As far as the victim is concerened the damage would be the same. We would not feel any need to protect them from this damage, and the untouchable would go unpunished. This is because we view the distress caused as unreasonable. We do not believe it is wrong to be touched casually by another person whatever their caste.

What if an untouchable flees to the USA? We would not extradite them for this “crime” (I think).

If this were just a matter of property, then we should treat the high caste person the same as a rape victim who suffered no physical damage.

This begs the question of why we ultimately believe some things are wrong. That is a different discussion.

I second RPLong’s request–PLEASE stop using hypothetical rape examples. This is not helping libertarianism, trust me.

I’ll -1 it, reducing the second down to a first.

Rape is important as an example because it is morally unambiguous. Nobody is going to argue that rape is okay. Using a morally unambiguous example for comparison is often important.

It’s the same reason as to why there are legitimate comparisons to Hitler, despite Godwin’s Law. If your argument would show that Hitler is a good guy, there’s something wrong with it, because Hitler being a bad guy is pretty much indisputable, just like rape being bad is pretty much indisputable.

What almost everyone is ignoring is the costs of making hair-splitting rules based on fine distinctions. Everytime you propose some fine distinction, you impose a cost because you are making the laws more confusing and prone to abuse by bad people who will invoke your fine distinction.

This isn’t a rejection of economic analysis. To the contrary, it is an economic argument that you are ignoring important costs to your hair-splitting rules. When it is recognized that hair-splitting is costly, it should be minimized subject to constraints just like every other cost.

The big rule for rape is simple. It is something like “you can’t have sex with someone without their permission.” We don’t add an exception for when the victim doesn’t know about it because that opens an avenue for bad people to make their prosecution more difficult by invoking your hair-splitting rule when it doesn’t apply. If you raise the cost of punishing bad people, you will get less punishment of bad people.

Do you seriously think anyone will change their opinion on porn or environmental protection due to Landsburg’s rape example?

The only possible response to this post by the mainstream media is an out of context quote: “Libertarian economist Steve Landsburg asks, ‘why shouldn’t the rest of the world be allowed to reap the benefits’ [of rape]?”

Answer this: does this kind of exposure help the cause of libertarianism or not? If you say “it helps,” you are clueless beyond belief re: typical human reactions.

Steve, think in terms of gambling EV. This type of post has no possible upside, but tremendous potential downside. Bob Murphy’s comment on getting fired is no joke in today’s PC environment.

Theorhetically, if they thought people could understand the argument, the defense lawyers for the Steubenville kids could have made the argument that “what the defendents did should not qualify as rape because no physical harm was done to the victim and she was not even aware of it until well after the fact.”

They could use your exact analogy even.

And if the jury was full of people sympathetic to your analogy, they might get a mistrial.

Point is, we don’t have to change the law to make “unconcious rape” legal, but rather, if you succeed in convincing the general public that concious rape is okay, it will become a reasonable legal defense and become de-facto legal through jury nullification (whether they intend to be nullifiers or not).

Q1) Farnsworth McCrankypants has no argument for regulation. But Will A who believes that the increased use pornography leads to psychological and physical abuse of children throughout the world does have an argument of regulation.

Q2) Granola McMustardseed has not argument for regulation. But the Friends of Pita Bread who believe that altering the state of a natural environment can help lead to rising sea levels which would in turn displace people from lower elevations does have an argument for regulation.

Q3) I would equate the attempted impregnation of a woman without her consent with the attempt to blow up a large occupied office building.

If a failed attempt at impregnation should result in no penalty, then a failed attempt at blowing up a large occupied office building should result in no penalty.

Since we are having fun with making up people’s motivation, here is another good questions.

Question 4
Uninformed Whiteguy just hates the idea that someone somewhere might be getting food stamps from the government. It’s not that he thinks food stamps free food stamps cause bad behavior; it’s just that the idea of other people’s free food stamps cause him deep psychic distress. Ought Uniformed’s preference be weighed when considering regulation.

So to me the answer to (1), (2), and (3) are all the same.

A personal concern of self distress is not a valid argument for restricting anyone’s behavior.

But the third yes weighs much more heavily that the first two.
On number three there is an implied law that my body will not be used in this way and I have a right to make such a law because my body is mine. The boys surely knew that the girl would require consent for this and yet they did it. In one and two there is no assumption that everyone must consent to this. If you want to use most things of mine you must get my consent.

This absolutely IS about property rights. In fact, the three scenarios are less similar than first appears because of the property rights in question.

In Question 1: Person A is distressed with what Person B is doing with Person B’s property.

In Question 2: Person A is distressed with what Person B is doing with Person C’s property.

In Question 3: Person A is distressed with what Person B is doing with Person A’s property.

Therefore it is entirely consistent to have a differing answer for Question 3, than Questions 1 or 2. (Because Question 3 has a victim, Question 1 does not have a victim, and Question 2 may or may not have a victim, but regardless that victim is not Granola McMustardseed.)

The individual has a right not to have aggression committed against them. Your hypothetical of “what if they never find out” is silly and doesn’t apply to this situation. Fact is, she DID find out. Therefore, it is an act of aggression. Photons from streetlights are not aggression, because they are not unwelcome.

I think some are missing the point of point D. Steve is NOT saying there is nothing special about the case of bodies, he is saying you cannot express that specialness purely in physical terms like boundaries, or even penetrations. So if you think bodies are special you need to articulate some criteria other than those.

That difference might be a matter of degree. A street lamp vs a laser. Or it might be something in different terms of discourse.
Some here have proposed property. That I think clearly wrong, but it’s the right *kind* of thing. I propose intentions, decisions, and desires. That may not convince you or Steve, but again it avoids the kind of problem Steve identifies in D.

Steve is NOT saying there is nothing special about the case of bodies, he is saying you cannot express that specialness purely in physical terms like boundaries, or even penetrations. So if you think bodies are special you need to articulate some criteria other than those.

I think case 3 is different to 1 and 2.
In case of 1 and 2 the story is complete even before the thing happened. In different words whether drilling (or porn watching) takes place or not the harm is perfectly known.
In case of rape we assume there is no concousness and physical harm but we can be sure only after the fact.
In such case if unconcius rape was not banned we would have increase in such rape attempts – of which some would cause some harm (some would lead to pregnancy, illness, or regaining councosiness during the act) just by chance. Hence allowing it would cause harm that would not be caoused if any kind of rape was banned.

Uninformed Whiteguy just hates the idea that someone somewhere might be getting food stamps from the government. It’s not that he thinks food stamps free food stamps cause bad behavior; it’s just that the idea of other people’s free food stamps cause him deep psychic distress. Ought Uniformed’s preference be weighed when considering regulation.

Uninformed Blackguy just hates the idea that someone somewhere might have more stuff than he does. It’s not that he thinks these other people did something bad to get this stuff. In fact, he admits that these other people worked hard and made many people’s lives better. It’s just that the idea of other people having more than him causes deep psychic distress. Out Uninformed Blackguy’s preferences be weighed when considering regulations?

Additionally, that you would label food stamps as “free” makes it sound like you don’t know what food stamps are.

Uninformed purpleguy uses food stamps, medicaid, and later medicare and loves it but hates government. Later when he finds out that government supplies all three his head explodes from this contradiction.

BTW, I used purpleguy because I don’t know any purple people and didn’t want to offend anyone. Sorry to all you purple’s out there if there are any.

Do you not regard the violation of tangible property in case 3 as a meaningful difference between that and cases 1 and 2 in which there is no violation of tangible property? See comment 77. I feel that was a pretty solid case, and one which does not rest on a special place of regard for the body.

To me the difference is so unambiguously clear that I’m wondering whether I am missing something really obvious.

@Todd 105
I do and I gave my reasons. Note they do not rely on specifying a sharp boundary of the body but refer to intent and mentality. Body boundary criteria don’t cut it. If you are pumped with Viagra and shot out of a cannon against your will, slamming into a woman resulting in sexual penetration you are not a rapist. If you sneak into her room at night and lift covers, never touching her, for a peek, you’re a creep. Unless she told you it was ok.

I think that neither Uniformed Whiteguy’s nor Uninformed Blackguy’s opinion should be considered as a valid arguments for or against food stamps.

However, if Libertarian Blackguy thinks that food stamps lead to a dependency on the state and discourages work, then his argument ought to be considered with determining policy related to food stamps.

If Liberal Whiteguy thinks that food stamps provide a social safety net that encourage people to take chances in pursuing additional wealth then his argument ought to be considered with determining policy related to food stamps.

Lastly, Another intarprattion of free foood stampes is thaty I was just typing vry quicklye and din’t feel that the increace of my wealth is baseed upone typos nor misunder stand of my post.

C…As long as I’m safely unconsious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits?

Why do you assume the rapist reaps benifits? How do you know the rapist isn’t harmed by being a rapist? Perhaps he suffers a life of torment after the act, or perhaps it poisins his every interaction with women thereafter. Do you know any different? If so, how?

Socrates and his ring of gyges example comes to the exact opposite conclusion: Socrates tells us the rapist, even if the victim doesn’t know, is harmed, not benefitted, by the act.

Lets re-pose question 3 in such a way that maintains the same property right issue, but involves a transgression that most people do not sympathise with. Ken Klan hates the thought of black people touching him. Should his psychological distress be considered? Remember we are considering theoretical rather than practical reasons.

Ken Klan hates the thought of black people touching him. Should his psychological distress be considered?

Please, we have enough Kens around here already.

Anyway, the answer is that the deciding factor is not distress, but a property right in one’s body. If the physical touching is deminimis, then it should be permissible. If the physical touching is to a similar degree as in the rape example, it should not be permissible. We already have laws about battery that make this illegal and don’t need to mention the Klan specifically.

At most, distress may affect how severe we consider the crime to be, but even that doesn’t apply to all forms of distress in general.

#113 A bad choice of name! Honestly, it was solely for the purposes of alliteration.

Anything that causes significant psychological distress is not de minimis as far as the victim is concerned. I was discussing theoretical aspects. To the victim it is similar to a rape. The fact is it entails a physical “asault” on the person.

If we are to decide this is de minimis, where do we draw the line? We are still failing to have a bright one.

Only if the physical intrusion is not de minimis does the psychological harm matter.

I probably should phrase that better. If the physical intrusion is de minimis the psychological harm still doesn’t matter for whether it’s right or wrong, because you have a right to control your body, which is a type of property right and is independent of whether having this right violated causes you any emotional distress.

When does the action cease to be de minimis? You have merely defined away the problem, not resolved it. What if I fondle the breasts of a sleeping woman? Stroke your buttocks on a crowded train? There is no bright line here.

I think you’ve confused the violation question with the damages question in trying to match up these three cases.

First, the question of violation: Rape is something done to another. It is directly an action we might and do tend strongly to want to prevent. We can dispute property rights, but the property right one has in themselves is pretty strongly established. Is that really in question? The idea that I own the right not to feel bad for the fact or my knowledge of the fact that you’re watching pornography is something we could argue about, but it seems to be categorically different from an action of rape. Some might more strongly dispute the wilderness action as a violation of Granola’s rights (for who can own the trees?, the sky?,…), but the fact that we’ve settled on who does and who does not own these things tells us something. Paging John Locke…

The question of damages presupposes we’ve had a violation. In case one we are far from establishing a right to be free of things others do that one finds offensive. In case two we need to define the property rights involved and assign them carefully, paging Ronald Coase… In case three we’ll need to over turn a lot of law to not be immediately arguing how big the damage claim is.

I think you’ve jumbled the damage claim/question in case three with the property rights questions in cases one and two. If you intend simply to challenge first principles on where property rights end (desiring bright lines perhaps), stop thinking that a property right is created by damages incurred. A property right is what gives rise to a damage claim, not the other way around.

And yes, property rights may in fact have at its origin more defining by feeling than discovery by logical deducing.

I applaud your bravery in trying to frame this question. Surely you must have had some inkling that it would generate a lot of negative feedback. Moral philosophy thought experiments are designed to make students reflect on why we hold the opinions that we do about moral issues. They are to be considered and examined to understand what constitutes right and wrong, and why. Often, to those who are not engaged in the study of philosophy, they may seem contrived or offensive.

For me, the issue with the unconscious rape question is that even if the victim remains oblivious, harm is done in how others perceive her. In the case of the Steubenville assault, many people knew about it, so harm was done to the reputation of the victim even before she knew it.

However, as a hypothetical, if a person were raped by a stranger they never had further contact with, and if the victim were unconscious and remained unaware that a rape had ever happened, then it would be hard to say that any harm had been done, other than the possibility that said act may embolden the perpetrator to repeat….perhaps this hypothetical should also have the offender drop dead right after leaving the scene.

There are some interesting premises in play here. One being that voters should get a vote on issues that distress them even if they are not directly effected. That is a profoundly disturbing assumption and I think you need to address that before anything else. Public policy should reflect the will of the people, regardless of the reason that they have that will. One might as well say that if you don’t have a gun, your opinion doesn’t matter on gun control.

Another point to be addressed: you ask different questions in your three scenarios, so it’s perfectly reasonable that they would yield different answers while not raising any inconsistencies. The third example should read: is the psychic harm to (barnaby)an argument for discouraging rape through, say, taxation or regulation?

So the key difference between them: NOT THE SAME QUESTION.

Further questionable premises:

That discouragement through taxation and regulation are the best means by which to avert psychological distress.

That humans, on a legal level, have no right to how their bodies can be used. In effect, you are making the premise that humans do not have the right to make decisions regarding their own bodies.

I hope that you aren’t really as stupid as your writing makes you out to be.

Psychological distress is not the only foundation for prosecuting rapists. Since you point to red hearring arguments, this is one, psychological distress is just 1 component of why rape is illegal.

Our bodies, whether deemed property or not, have a right to safety (we consciously choose when to compromise that safety). At least when you are hit with light photons you have a conscious ability to decide whether to continue being hit by them or not.
On the other hand, rape of an unconscious person is blatant disregard for a persons right to safety; it lacks the required consent.

Your statement:
“As long as I’m safely unconsious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits?”

is narrow minded and deluded at best. How could anyone ensure that their victim is shielded from the costs of an assault while the victim is unconscious? How can a person assert that they are not doing physical harm to while their victim cannot provide feedback?

In terms of economics, the economic consequences of rape are, essentially, less sex for everyone because women have to be afraid all the time.

In spite of the lack of knowledge of the rape, the lack of pregnancy, and the lack of disease, those are not the only things that constitute bodily harm, at least as legally encoded. In fact, a good deal of what we prosecute depends not upon the *idea* of bodily harm, but rather the intent to perpetrate an act which is criminalized. This is part of the way in which rape cases go wrong–if you can’t prove intent to rape, you have a hard time convincing a jury that harm that *was done in the process* can be punishable. In terms of the legal side, intent is a part of the way we prosecute, so if you *intended* to rape someone who does not have any knowledge that they have been raped, you have still committed a crime under any form of the law.

Mathematically, “reaping the benefits” (ugh, I feel sick even typing this gross-ass phrase) of a passed-out woman, is problematic. One commenter mentioned that “Believing yourself to have a .01% chance of being violated must certainly cause at least .01% of the psychic distress of being 100% sure. Probably much higher in fact, since people systematically overestimate the likelihood that low-probability events will happen to them.”

But rape isn’t a “low-probability event.” The potential for rape causes psychic distress in a huge proportion of women (I would say all, but I don’t want to over-exaggerate–there may be a few out there who never worry about it). In fact, this is a documented problem, usually referred to as a sub-category of PTSD, in which a targeted group (in this case, women) feel the psychological effects of crimes *they have not yet been victims of* but have a reasonably high likelihood of experiencing: like rape. One in four college age women. One in six women over a lifetime.

Finally, ethically, many events that are grave disasters or atrocities qualify as “events which produced no witnesses” (Dori Laub’s figuration). Just because you can’t see the immediate effects doesn’t mean there aren’t consequences. For us all.

The problem with the whole dismissal of “psychic damage” is that it ignores real, legitimate consequences beyond what may be visible.

“It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies.”

If we eliminate the significance of the boundaries of our bodies, then on what grounds does physical harm continue to have special significance? Consider the following scenarios:

First, Lets reconsider the scenario that you pose in question three. In this case the victim does not incur any physical harm; however, she does experience great psychological distress. This distress may become so great that it impacts her ability to hold a job and instead she ends up collecting social security/disability benefits for the rest of her life. Should this be illegal?

Let me then pose another scenario where Joe Schlimazel is physically (not sexually) assaulted by Ragey McHulk, because Ragey was offended by a comment Joe made. Ragey derives pleasure from beating Joe and makes sure to stop short of injuries that would prevent Joe from returning to work. The assault takes place in a way that leaves Joe with a black eye and a broken arm, but no lasting psychological distress. Joe is able to return to his job the next day and remain a financially independent member of society.Should this be illegal?

In both cases the boundaries of the victims bodies are intruded upon without their consent.In the case of the rape, the damage incurred by the individual is psychological, and there is a subsequent financial cost to society. In the case of the physical assault the damage to the individual is physical and there is no financial cost to society.

What is be the fundamental difference between physical and psychological harm in any situation if not defined by a violation of one’s body? If the perceived significance of physical harm is the ability of the victim to preform everyday tasks, then one could argue that psychological harm is equally detrimental. If the significance of physical harm is related to the physical pain incurred by the victim, then much like psychological pain it cannot be objectively measured by a third party. That leaves only the aesthetic. If the boundaries of our bodies are not sacred then there is no difference between the aesthetic cost of Joe’s black eye than the cost of his own decision to wear short running shorts every day.

1) You equate “being aware that one has been physically harmed” with “having been physically harmed”. These are completely different. An obvious counterexample would be exposure to a large but nonfatal dose of radiation without one’s knowledge. Or drawing a large but nonfatal amount of blood from someone who is asleep.

2) You equate “lack of physical damage” with “NO CHANCE that physical damage could have happened.” This is like saying that if a hidden sniper plays a round of Russian Roulette with someone without their knowledge, and they don’t get shot and never find out about it, they have not been violated.

As with most things, your answer is in evolutionary biology. If there is one things humans (especially women, given the relative shortage of ova) want control over, it is who they mate with. A guy sitting in his living room fuming about people watching pornography can learn to ‘get over it’. A guy upset about drilling in Alaska can also learn to ‘get over it’. However, it is very, very difficult if not impossible for a woman to ‘get over’ the thought of having no control over who mates with her. You are trying to overwrite millenia of basic biology. You might as well try to get people to stop having sex.

Regarding F., as has been pointed out, if no one ever learns about it, there is no notion of justice. The very fact that the perpetrator is caught means someone learned about it. But even beyond that, I would say “no I would not say it is ok because that would encourage people to it to me, and as was mentioned before, I have a very strong evolutionary programmed aversion to the very idea of allowing people to do that to me, and this aversion is not.going.anywhere.”

If you further go on to ask: if I hypothetically could rewrite my physiology to remove this biologically programmed aversion to having no control over who I mate with, would I be OK with rape like that? I would answer: “yeah, probably, in the same way if you removed my biologically programmed aversion to death and pain I would be OK with people shooting me”.

Vladimir (#125): I think you’re (at least slightly) off topic, since you’re considering cases where there has been physical damage, whereas the interesting case is the one in which there hasn’t been.

As to your second point, regarding the *chance* of physical damage, one could of course deal with this by assessing penalties when physical damage occurs and not otherwise, so once again I don’t think this gets to the question of why there should be penalties when there’s no physical damage.

If you steal money from someone in tiny increments so that they never notice, is that all right?

I’m not sure what you’re attempted analogy is here (are you responding to Question 3, or to the followup questions at the end), but in any event, it doesn’t seem to work. If you steal my money in tiny increments so that I don’t notice, then eventually I have to forgo some consumption. I might not be aware of the *reason* for that forgone consumption, but it’s forgone nonetheless, and this seems to constitute a real (as opposed to psychic) harm.

Regarding D: I was a bit unsure of what you were getting at in how you worded it. By saying “It is, I think, a red herring to say that there’s something peculiarly sacred about the boundaries of our bodies.” it makes it seem as you’re addressing the psychological aspects of the rape but the rest seems to discuss the physical issues (maybe I’m misreading this). By assumption, the penis penetrating you isn’t causing you any physical harm (of course there are practical issues with this; see E) just as the light isn’t harming you. That seems pretty straightforward. However, I think that *knowing* that you’ve been raped, while it can’t harm you physically, can harm you psychologically at an order of magnitude much greater than those suffered by 1 and 2 (see F).

Regarding E: Yes, this creates incentive to render people unconscious which makes this impractical. Of course, I can think of many others as well. How do you verify that this person won’t remember any of it and would never find out that it happened if left to their own accord? How do you ensure that the rape won’t cause any physical harm to the victim (STDs, tearing something, etc)? I think this also creates incentive for stupid people to rape someone who really would remember it if the stupid person thinks they can legally get away with it. (i.e. a BAC of .20 does not equal someone under an anesthetic but if you’re dumb, this might not occur to you). I think that on practical reasons alone, this could remain illegal but I think that the psychological harm done to the victim could also be enough to make this remain illegal (see below)

Regarding F: I mentioned under D that being raped could cause someone particularly deep psychological distress despite not being caused physical harm. I think this order of magnitude is absurdly higher than the first two cases. If you take a variation of the Steubenville case where the girl is truly, utterly, completely unconscious (imagine she was dead for 6 hours then brought back to life with everything else the same). The girl has to suffer knowing that everyone else knows about it, there are pictures, texts, and other evidence depicting the details that she could easily and likely see. I imagine she would be treated differently as well. I think this is enough to render it illegal. Suppose we take a different scenario where only the girl and the rapists know that it happened and no 3rd parties. I still believe that the psychological harm in this scenario warrants it illegal but I can’t articulate precisely why. If I knew that I was raped while unconscious, I certainly wouldn’t like it because it would feel like someone else used something that was mine without my consent and that I would fall into the category of people-who-have-been-raped which has such a negative connotation attached to it. Finally, the scenario where only the rapists ever know about it and the victim never finds out. You have to ask the question, “How do they ensure that the victim never finds out?” I think that it will always involve limiting some freedoms of the victim. Suppose you have some paranoid person who, under this law, checks him/herself with a rape kit often enough that they would find out about the rape. In order to prevent this from happening, you would have to limit them from using the rape kit which would be some freedom of theirs. In general we would have to eliminate all possible timelines that involve this person finding out about the rape which may limit that person’s freedoms. Forgetting about the practical issues of this, I’m still not entirely convinced that there no longer remain psychological issues. For example, if everyone knows that this law exists, non-victims might suspect that they have been raped and have similar problems as in my second scenario. However, if we suppose that the only people who ever find out about the law are people who would rape someone and never tell anyone else that this law exists(e.g. only people who have no problem with raping someone ever find out about the law and nobody can suspect that they’ve been raped via this law), I think it might be OK. I guess we’re lucky to have the choice made for us by the practical issues of this.

Steven – Perhaps you wouldn’t have to forgo any consumption. Most people have money left over when they die. :-P

This is fine as long as you don’t *spend* any of the money you steal. Once you start spending, *someone* has to forgo some consumption (or some leisure) because the goods you consume have to come from somewhere. But as long as you’re willing to stipulate that you never spend any of the stolen money, I think you have a good additional question to add the list. Unfortunately, I don’t think you’ve helped me figure out how to answer it.

Sorry if you’ve explained this already, but can I ask what your purpose in asking these provocative questions is? Do you advocate altering the laws that govern the prosecution of rapists? Do you genuinely believe that someone who has sex with an unconscious person should not be charged with a crime?

I don’t deny your right to conduct a thought experiment. And it’s possible that those, like me, who strongly believe raping unconscious people is a griveous crime, might benefit from trying to articulate just *why* they believe this. However, I’d like to propose another thought experiment for you:

If someone–a professor of economics, say–can prove, by logic and/or other methods, that a supposedly abominable act is not, strictly speaking, unethical, does it follow that it’s permissible to commit that act?

This is more or less the question which Dostoevsky’s Raskolnikov asks himself in ‘Crime and Punishment.’ He decides that there is no good reason *not* to kill a miserly old woman whose existence is of no benefit to anyone, and whose death will in fact benefit some people (she is a crooked pawn-broker and money-lender). He kills her, with an axe. The novel describes the consequences, both legal and psychological/spiritual, of his decision–his thought experiment.

It is a great novel, because not only does it conduct a provocative thought experiment, it also imagines the frightening consequences of that line of thinking. My concern with your post is that you do not seem to have given much thought to the practical consequences of your thought experiment. Consider the truism about certain political and philosophical systems being valid “in theory, but not in practice.” Your theory that having sex with unconscious people is permissible may be defensible in theory, but what about the *practice* of having sex with unconscious people?

In short, the proof of the pudding is in the eating. Would you be willing to eat the particular pudding which you’ve concocted here? To be quite blunt, if you could be sure that there would be no legal repercussions, would you yourself have sex with an unconscious person, without his or her consent? Or, if someone had sex with your daughter while she was unconscious, would you advise her not to press charges?

Thanks for your long and thoughtful comments. I take your main point to be that when logic (apparently) conflicts with our strong visceral feelings, we should sometimes continue to put faith in those strong visceral feelings, because we might be mistaken about the logic and the strong visceral feelings might be telling us something important.

It’s important to distinguish two different (but related) contexts here: Should I trust my strong visceral feelings in sorting out my personal moral priorities, and should they be given weight in public policy?

Re the former, I think it is quite impossible to be a human being and put one’s own strong visceral feelings entirely to the side. There’s a still question about whether we ought to at least try, and I think we probably shouldn’t, for many of the reasons that you cite (or that I think you mean to cite). Our logic can be mistaken, and in any event logic is not the only path to truth.

As to whether strong visceral feelings should be given public policy weight independent of any principled justification, I’d urge you to remember that the visceral disgust that you and I feel about rape is pretty much the same emotion that some people feel about homosexuality or violating the Sabbath. Giving policy weight to such feelings seems to me to be a dangerous road to travel.

Of course, some dangerous roads lead to worthwhile destinations, but that doesn’t mean we should simply barrel on forward without stopping to deliberate about what, exactly, we’re trying to accomplish.

As to your final “proof of the pudding” paragraph, I think you are conflating the two questions of personal morality and public policy. I happen to recoil from the taste of beer, but that doesn’t mean I think beer should be illegal. I happen to recoil from opportunistic consequence-free rape, but it does not follow *from that alone* that such rape should be illegal. Nor, of course, does it follow from the failure of that particular argument that such rapes should be legal.

To come back to your main point: Should your and my visceral disgust count as a building block for public policy? I think you’ve suggested some reasons why it might, but I also think your reasons point in some directions you might not want to go.

As someone with ten years of psychoanalytical training I simply think you are wildly uneducated about how the human mind actually functions. As part of my training I underwent 3 years of analysis, and this involved delving into the unconscious workings of my mind. As a humorous side-note, I once acted as Richard Feynman’s psychiatrist for ten minutes as even HE was confused about how the human mind ACTUALLY functioned; in particular his own mind and memory about a specific and extraordinary event that we both participated in.

Most brain activity IS unconscious. This is a statement of fact, similar to the statement that 2 plus 2 equals 4. Apparently, you were trained in math so I can certainly imagine that you might consider a seemingly functioning adult who could not grasp the preceding arithmetical statement to be a kind of moron, and/or a person with a brain defect and/or simply a put-on artist and/or a liar.

So WHAT if a person is unconscious while being raped? If you actually think that this means that the event could not enter into their brains–and with serious consequences to their future emotional life and consciousness–then I think you are uneducated in the extreme or simply looking for attention.

Intellectually your argument is absurd because you have assumed something that is in all likelihood completely false. I actually bothered to have my head looked into in large part so that I could understand the (apparently) uneducated/deranged thinking of my fellow citizens.

Peter Tennenbaum
Son of Stanley T. (who held identical views–or so I claim)

Libbie Tarian is being monitored by the government 24 hours a day. Her email is being read, her phone is tapped, every computer click is logged, and there are cameras pointed through every window in her house.

The government has not bothered to get any warrant or other supervision, because after all she is not suffering physical harm. Anyway, she is completely unaware of what is going on and will always remain so.

FSE: To be on topic, your final question should not be “Is the govt doing anything morally wrong?” but “Should the govt’s actions be legal?”. The discussion here is about public policy, not morality. (These things are different because not everything that’s moral should be legal and not everything that’s immoral should be illegal. For example, I believe that advocating Naziism is immoral, but I do not believe advocating Naziism should be illegal.)

With that modification, this is a good question to add to the list. Unfortunately, adding to the list of questions still doesn’t tell me how to answer them.

Farnsworth would just have to work through his distress with a therapist. As long as porn is not being forced upon him directly or he is not involved in any way with the pornography that someone else is watching, then there is no room for legal action. If his distress is as basic as you put it, then you are correct in asserting (as you basically did assert rather than ask) that this is not an issue to be regulated by law.

Granola’s concerns do have legal grounds. We are all connected to, say, the drilling for oil in Alaska through the complex ecosystem that is our Earth. So Granola’s psychological distress is in fact relative to the possibility of concrete impacts on his life. He wants the earth to be protected so that he continues to have a place to live. This is different from Farnsworth, who is unlikely to suffer any direct physical consequences of someone else watching porn.

As for the rape “question.” How do you propose than any rapist (read: criminal) could guarantee that there would be no effects, psychological or physical, on the victim? Perhaps your rapist would have a very large penis that unintentionally causes you anal tearing. Or what if someone penetrates you with a broom handle and you get a splinter? Or it goes too far and damages your colon??
Your position focuses on the results of the act; if there was no apparent damage, then no crime was done. But then an individual will carry on with rape under the assumption that an unconscious person is fair game, assuming he/she is not committing a crime, but ends up transmitting an STD or awakening the victim, and suddenly he/she is a criminal!
The actual result of an action does not determine whether or not it is illegal. The potential problematic results of our actions are why things like rape, drinking and driving, and possessing an unregistered gun are regulated and punishable by law.

You may drive drunk and not hit anybody, but it is still illegal because there is an increased risk that you could kill someone. The rest of the world has a reasonable expectation of safety, that drivers will be sober enough to stay on the road, and that no one will penetrate our bodies without our sober consent.

You’re doing a bait and switch. The question posed at the end of the first two scenarios is whether or not public policy should be affected by the preferences of people who are not directly involved with an issue– they simply don’t like something. The question at the end of the third is whether or not an act should be illegal if the victim has no memory. The analogous question in the third scenario is whether or not a relative of a rape victim should have their preferences taken into consideration when creating public policy for rape– and the answer to that is no. But you don’t ask that…you make the switch to ask whether or not a “costless” rape should be punishable..and the answer to that is yes.

The reason behind that is simple: laws are designed to deter an action from occurring. Thus, the victim’s memory is irrelevant to whether or not we have laws that make rape illegal…the only things that matter are the actions of the perpetrator.

To think of it another way…you’re effectively arguing that if a tree falls in the forest and no one is around to hear it, it doesn’t make a sound and thus we should question whether or not the tree fell in the first place.

Granola’s concerns do have legal grounds. We are all connected to, say, the drilling for oil in Alaska through the complex ecosystem that is our Earth. So Granola’s psychological distress is in fact relative to the possibility of concrete impacts on his life. He wants the earth to be protected so that he continues to have a place to live. This is different from Farnsworth, who is unlikely to suffer any direct physical consequences of someone else watching porn.

I don’t think anyone questions that the possible physical impact on Granola ought to have public policy weight. The question is whether her psychic trauma should receive weight in and of itself.

Likewise, I don’t think any questions that the many possible physical consequences of rape (and similarly of drunk driving) should have policy weight; that part’s uncontroversial. The question is whether *additional* weight should be given to your sense that you don’t like things happening to you when you’re unconscious, even if you never learn about them. Of course if you *might* learn about them via *physical* effects, that should be weighted — I don’t think that’s controversial. But it seems to me that you’re choosing to answer the easy questions and avoiding the hard ones.

I’m assuming that in Utilitarian World, if you are conscious, you have a right to prevent things happening to your body that you object to. I have read nothing in your example to explain why this right is suspended once someone is unconscious. If bodily integrity is incidental to this worldview, then you are going to have to explain why the hell anyone would want to adopt it well before you hammer out the niceties of whether or not its bad if someone is too passed out to remember being raped.

Kes: I have read nothing in your example to explain why this right is suspended once someone is unconscious.

In the hypothetical case where the unconscious victim never finds out what happened, and suffers no consequences, it’s very hard (for me, at least) to articulate the utilitarian reason why you’d want to prevent an act with benefits to the rapist and no measurable costs to the victim. With the victim conscious, the costs become clear.

I quote only one word from Steve’s comment. The reason is that I see the word, but I am not sure all commenters here do. I really don’t think Steve is pushing the “free groping” bill. I think he is probing weaknesses in his own prefered moral theory.

@Steve: Can you coherently weight the groper’s pleasure negatively? That would leave you with the problem of unconscious rapists assaulting unconscious victims, but that seems a smaller problem.

There are two flaws in your argument. First, the “psychic harm” to Farnsworth and Granola concern actions happening to others (i.e. those who watch the hypothetical pornography and those who want to visit the hypothetical wilderness). However, the “psychic harm” in example three is the the result of actions inflicted on the unconscious rape victim, not his or her awareness of actions taken on some other unconscious rape victim s/he has never met. So example three is structurally different.

The second flaw is that determining that public policy will not take into account the opinions of Farnsworth and Granola is unlikely to heighten the danger to Farnsworth and Granola or others like them. No one is likely to force Farnsworth to watch pornography or drill for oil in Granola’s flower beds. However, to legalize rape on unconscious victims has the foreseeable and even likely effect of encouraging the use of date rape drugs and simply training those who use them not to talk or Tweet about their assaults. If, using your example, raping an unconscious person was made legal (so long as the victim never found out about it, didn’t become pregnant, and wasn’t injured or made ill), would it be legal then to render someone unconscious for the purposes of such a rape? After all, the individual would be causing unconsciousness to commit an act, which, by your posited definition, wouldn’t be a crime anyway. And would the act be converted to a crime if the victim happened to awaken early — putting people in prison for essentially having bad timing. Your example is heavily flawed, and I suspect you knew that when you wrote it.

I am not a philosopher, just a mere mortal. But here are my two cents.
This is not about visceral feelings. It’s about responsibility. How about public policy and responsibility in fact. Is public policy encouraging personal responsibility and or is it encouraging an environment of theft, misuse, degradation, and lack and disconnect of a personal responsibility for ones own actions? Is question #3 promoting the aggressor to act in a responsible nature towards his fellow citizens? No. Is there such a thing as a victimless crime? No. By allowing the aggressor to act on his more primal nature by removing his personal responsibility and a policy of punishment , public policy is moving the person towards his more selfish ambitions and perverse intentions, and not for what is good for the public. That in itself is a consequence for the public, and the victim being a member of the public, is also affected.

I don’t think we dismiss the harm in options 1 or 2 because they are purely psychological harm.

I think it’s based on one entirely normative assumption:

The subjective harm of Farnsworth McCrankypants and Granola McMustardseed are lower than our rape victim

Ultimately neither of these make very good arguments within microeconomic preference sets. Who’s to say that there isn’t someone out there who would strictly prefer getting raped to knowing other people masturbate or to environmental destruction. But ultimately, that’s what your public policy indifference effectively relies on here. That we cannot make a judgement that the psychological distress of an unconscious rape victim is worse than the distress of an environmentalist losing trees, or a puritain knowing that people masturbate.

Ultimately, public policy has to be made on those kinds of judgements. How do we know that the net benefits of some public spending (and the required taxation) are positive without reaching into the minds of taxpayers? We have some good economic theory that suggests sometimes it will be, but ultimately someone needs to make a guess about the costs and the benefits.

And that is what is going on here. We don’t ignore Farnsworth McCrankypants or Granola McMustardseed because it’s all in their heads. We ignore them because we think their harm isn’t very high AND there is a lot they could do to mitigate it. Neither is true for our rape victim.

[The first paragraph of this comment was deleted as off-topic, with the author's permission. I never edit comments without permission from the author. --- SL]

First, all of your examples speak not to whether a persons opinion should be considered in making public policy but to the weight they should be given. Certainly in a nice democratic society we can at least have a fig leaf of considering everyone’s opinion, and a great big open picnic blanket of free speech (even hostile professors).

1. barely consider- the harm is not CAUSED by the porn viewer, but exists with Farnsworth’s head, regardless of whether there is anyone enjoying some porn.

2. consider more – The harm, psychic or physical would be caused directly by the drilling. The author seems to misunderstand the reasons people object to alaskan oil drilling, believing it is an aesthetic choice and that the beauty can only be enjoyed by visiting the region– aside from the fact that scenery can be enjoyed from afar, there are global ecological and biodiversity concerns that while speculative, are no less so than the potential benefits. The harm, psychic or physical would be caused directly by the drilling. While harm may not occur, the potential for harm that impacts many requires regulation or individual remedy.

3. The rape is the direct cause of the psychic harm once discovered. While fortunately no physical harms resulted, the type of intrusion is likely to result in sever harm, either intentionally or accidentally and must be punished as a deterrent before it causes the harm.

When it comes down to it, isn’t all harm psychological? If I give money away or have it stolen, the only difference is psychological. If I donate blood I suffer the same damage as losing blood from a wound. Some consider a pierced nose an enhancement, I would consider a spike through my nose as significant damage. Cutting the arm off a corpse causes little suffering, cutting my off causes lots of suffering but only in my psyche-the actual damage could be argued to be the same.. What makes one OK and one not is what is happening in my head.

If you adhere to a strict utilitarian principle, then it is outcomes that matter, and if there are no negative consequences then it is inescapable (I think) that rape should be allowed IF the victim suffers no ill consequences AND it did not cause others to suffer more negative consequences (through encouraging failed attempts perhaps). It is currently impossible to make a confident claim that either of these could ever happen, so agreeing with policy that makes such acts illegal is not necessarily against utilitarianism in practice.

Alternativly we could have some sort of virtue based approach. Rape is wrong, so therefore unconscious rape is also wrong. The problem with this that what is wrong is ultimately arbitrary, so need not have any logical basis. Homosexuality is an example of a “wrong” that has been accepted by many as not wrong.

It is I believe impossible to arrive at a solution that is ultimately both emotionally and intelectually satisfying fro me.

If Farnsworth McCrankypants is the only person who feels the way he does, and most of the rest of the community is either neutral to or derives pleasure from pornography, then Mr. McCrankypants’s psychological harm isn’t nearly enough to outweigh the porn lovers’ benefits (assuming they love porn as much as he hates it), so we ignore him (or find ways to help him reduce the psychological harm, if we’re nice).

If 90% of the community is people who are harmed the way Mr. McCrankypants, and only 10% people who enjoy porn, then it’s an entirely different situation, isn’t it? In that case, of COURSE you ban pornography, no matter how strongly you feel people should be able to look at whatever they want to. It just hurts too many people.

Likewise with the environment.

This pretty much describes the degree to which we regulate both of these issues in America right now, for pretty much these same reasons, even if I think it’s pretty stupid to allow yourself to be harmed by something you will never encounter, it happens, and I know I do it for other things.

In the rape scenario I think you narrow the focus too much. For the girl, if she finds out about the rape, she will be psychologically harmed by it. If her immediately family finds out about the rape, they will all be harmed by it. If a random stranger who knows neither party personally finds out about it, there is a good chance that they will be harmed by it (I know this is true for myself). The harm generally drops with distance, so I’m not going to be harmed anywhere near as much as the girl’s father would be – mild discomfort, disgust, and a weakening of my faith in humanity, but nothing like the rage, hatred, loss, and potentially helplessness of the father, but the harm is still there.

If nobody is ever aware of the rape, even the girl herself, and there are no physical or psychological consequences (assuming that’s possible, at least one commenter claimed to be a psychologist and claimed it wasn’t), then there is no harm. Really though, as a practical matter we don’t need to legalize it, because as soon as someone finds out about the rape it has the potential to do great harm and should not be legal any more. The legality question takes care of itself.

First of all the three situations aren’t analogous. The person that doesn’t like others watching porn is distressed because of a moral judgement about others. The person that want’s to protect the wilderness feels psychic harm because she understands that wilderness exists as part of a complex ecosystem, and so anticipates the harm to the wilderness having a cascading effect.

Furthermore, it’s obvious that we can include in the realm of morality things which we do not directly experience. None of us will experience more than a few levels of progeny, yet it is universally agreed that the conditions of those progeny need to be sufficient for survival.
In fact the entire argument rests upon direct experience being required for harm to occur. Or that harm occurring is the source of right and wrong.

So again returning to the previous examples, the anti-porn person doesn’t have cause to regulate that, but not because it doesn’t affect him. He would have to show that it affects someone, somewhere, at some time; and further that the cost is greater than the reward. (Or some other metric)
The environmentalist has cause to call for regulation of the wilderness on the ground that not protecting it contributes to an existential threat to the planet.

Which brings us to the third issue. Which is just as easily replaced with something less provocative:
I have a tooth brush. Someone else using my toothbrush causes me “psychic harm”. What is wrong with someone using my toothbrush as long as 1 – I never find out about it, and 2 – they are completely disease free and take measures to care for my toothbrush.

The paper’s /suggests/ that so long as those criteria are met it should be permissible. (A quick aside, since he’s talking about this from a legal standpoint, it should be noted that so long as no one knows it is /de-facto/ legal). Furthermore, if not knowing had no psychic effect on me, why should knowing?

And here’s the problem. The answer to this question is to get empirical. But the problem with doing that is that it creates the “isolation” game that happens too often with thought experiments. For example, I say “Well, I’d notice the tooth bush moved everyday, questioning with denial would be tantamount to gas-lighting, which would be wrong.”. The philosopher then says, “Well pretend they can put it back exactly the same every night”. Eventually we get to the question “Suppose someone can use your toothbrush, but restore every molecule to the pre-use position” Or otherwise asks the question “Is it permissible to do x, without any of the negatives of x?” The obvious answer to that is “Of course”.

Which leaves us with only one thing. If a divine being raped you, removes all artifacts of the rape, then showed you video of how that happened and how that worked, why would it cause psychic harm? The answer is because that is beyond our ability to understand. Our mind works on probabilities, and probabilistic models. It is incapable of fully groking what it means for something to happen yet to leave no trace. There is suspicion that something must have been imprinted, depleted, etc…

So, because of the inability of our brains to fully grok that, it is then wrong for any individual to then inform the person of this happening, because it retroactively recreates the rape for the person via imagination, etc…

You have posed a different question in #1 and #2 which asks only if the psychic harm is an argument for making/changing law, while in #3 you ask if the law ought to “discourage such acts”. There is a key difference between an argument and an act. Since in #1 and #2 the psychic harm is only an argument, hopefully before legislating, the lawmakers would also consider other arguments. Such arguments might include whether a particular law will encourage harmful or risky behaviour, and of what magnitude the harm or risk is.

There is an argument that one’s psyche ought to be protected, and in very limited circumstances, the law does censure psychic harm where there is intent to harm a specific person and the harm is not remote. In #3, regardless of whether lack of physical harm and discovery was due to the actors’ careful planning or was simply fortuitous, viewed objectively the actors should have realized both the risk of physical harm and of discovery (Indeed in the Steubenville case which you noted, the victim did later become aware of the rape). Risk is important, because there is rarely any human act which goes completely according to plan. The law ought to discourage behaviour where one person seeks benefits at the risk of harm to another person, where the risk and harm are substantial and cannot be compensated monetarily. We generally recognize that intent to harm is relevant, and therefore the law treats intentional harms more harshly than accidental harms, even if negligent.

There is also a difference between the level of psychic harm in #3 and in #1 and #2. The fact that the act in #3 was much more personal results in psychic harm felt much more acutely by the victim in #3 than the victims in #1 and #2 (if the act is discovered). However, I would differentiate between the psychic harm to the actual victim in #3 and the psychic harm to the victim’s friends/relatives/loved ones.

We also have to be aware of the cultural context of these scenarios. In our culture, rape was/is often a crime associated with asserting power and control rather than uncontrollable sexual urges, and there was/is a stigma associated with rape which makes it difficult for victims to report it. These factors impact both the degree of psychic harm felt by the victim, as well as considerations of whether the type of behaviour should be censured. In other words, if you recognize you have a problem which you wish to eliminate, creating a number of exceptions or rationalizations to the problematic behaviour will undermine your efforts to eliminate it. In an imaginary world where rape was nothing more than an individual act with the only individual consequences being disease or pregnancy, the psychic harm felt by the victim might be considered too remote to censure if the perpetrators had taken steps to manage the risks of discovery, disease and pregnancy. However, that is not the world in which we live. I also note that in some cultures, the psychic harm felt by a rape victim’s family would be considered substantial enough to warrant legal censure.

In conclusion, my answers to #1 and #2 are no, because the harm to the hypothetical victims is remote. That being said, there may be other arguments which compel the regulation of the acts in question (pornography and oil drilling). In #3, my answer is yes. My answer in #3 is not due to the psychic harm felt by us (the friends/relatives/loved ones) but the risk of physical and psychic harm to the actual victim.

This poses a lot of questions that need to be addressed in a much more substantial way than I am willing to right here. There really are several questions:
1) What is the goal of public policy? Is it to maximize societal benefit, protect our property, what?
2) How do we weigh harms/benefits?
3) What normative moral philosophy is right? Should we even look to ends?
For a start.
All of these have dozens of books written on them and as such I won’t waste my time discussing them at length. However some topics to look into:
1) Violation of our bodies: Look at compulsory immunization laws and the numerous discussions on the moral ramifications of each.
2) There is a fundamental question of if we can violate people’s rights for the benefit of society. Some examples where these issues are discussed are the
hospital example: basically, we kill 1 person to get organs for 5 who would die otherwise. A common answer from lay people is the fear that would be associated with going to the doctor. There would be fear just walking down the street in the third.
the mob example: kill an innocent person to satisfy an angry mob to prevent more deaths.
There are a plethora of other examples and from these you can look to different philosophies. Depending on the normative theory you use, or if you believe one doesn’t exist will obviously change your answer to the 3 questions. But discussion on those will help see the problems with 3.

Thanks for your long and thoughtful comment, which I’ve approved for posting because parts of it are useful and on-topic. But re the early parts about the environment, I think you’ve missed the point. We all agree that the sorts of actual harm you’re describing should have public policy weight. The question was whether Granola’s psychic distress should have *additional* weight over and above that. That’s why I proposed a hypothetical in which the psychic harm is the only harm, and by ignoring the hypothesis, I think you’ve devoted a lot of effort to rehashing things that are quite uninteresting precisely because everybody already understands them and agrees on them.

(Note that in any particular instance, we might disagree about how much actual harm is taking place. But I think we all that actual harm, when it exists, should receive some weight in the policy process.)

Look what intelligent, thought-provoking debate this blog post has created. I fail to understand how this could ever be frowned upon by a University which claims to be committed to academic freedom, especially because it is what one of their best professors is doing on his own time on his personal blog which is in no way affiliated with the University. I become more depressed each day as I discover the hypocrisy and indoctrination present in this “great” University.

The law should prohibit behaviors likely to cause harm regardless of whether or not they actually do in a given instance. I cannot run outside and fire guns (I live in densely populated area where gun ownership is mostly unrestricted) even if the bullets happen to do no damage because there is no way I can guarantee that firing the bullets will never hit anything. Society has a right to restrict my behavior because it’s likely to cause harm. I am being prevented from putting other people at risk. The firing of a gun is penalized, but I would be penalized greater if they actually hit someone. The law is right to punish me if I shoot the gun and cause no harm, since I should not be doing something that has a high probability of causing harm to others. Even if I saw I’m an expert shot, nobody should have to trust me that much.

The other thing is that the law ought to establish protected boundaries around people. A person who knows little about biology or chemistry might not know he is working with hazardous chemicals. Even if the risks aren’t huge, we feel that the job is required to state the risks clearly, even if they’re negligible. If you work around radiation, the law is that you must be informed of the amount you are exposed to, your employer just can’t say ‘it’s a safe amount’ – no, they owe you the amount.

A person is owed the truth about what is done to their body in the same way. If I do something that can affect you, the law should mandate that I inform you of what I am doing. Otherwise, it’s just rewarding sneaky people. You should not be allowed to do anything to anyone unconscious.

Part of this is the social contract – we should get the protections we want, unless the demands put an unreasonable burden on others.

Rape damages people for life. The hypothetical you’ve invented is so contrived that it can exist only in the mind of a (likely male) college professor who has no real tangible worries about being raped. The fact that rape causes incredibly harm should make it illegal in call cases, since only in extreme hypothetical situations that don’t really correspond to reality. Letting anyone get away with rape is going to cause harm since they’ll probably rape again – rapists are typically repeat offenders.

In A, if a guy can establish porn causes harm, then restricting it might be worthwhile. However, we’ve failed to establish that. We have however established that banning porn infringed on free speech, which we place a high value on.

In B, we should weigh the costs and benefits. I might object to a particular piece of industry in a particular place, but we should balance our need for energy against damage to the ecosystem. We should open up discussions on drilling to as many people as possible.

In C, the law should be protecting us from violations of our bodies, even if we aren’t able to protect ourselves. Why? Because the law should give us the protections we want.

How about a Coasian approach? If it bothers me for someone to alter the state of nature, I would presumably be willing to pay to avoid it. In a Coasian world I could perfectly bargain to restrict entry into the natural area if my WTP is high enough, relative to your WTP to enter. If that sort of bargaining seems OK, why doesn’t a regulation that enforces that outcome? The same reasoning applies to the other 2 examples, too. Redistribute the surplus however you want if “fairness” is your concern.

Seconded Y. Pedersen’s reply. Questions in #1, #2 are substantively different.
To be in line with the other two, the question #3 would need to be changed to “Assuming there’s a society where rape is ACCEPTED behavior in certain cases, and a person C doesn’t like rape as an idea, should Person C’s preferences be used as a basis for legislation?” While the answer is a resounding “No” to that one, but, fortunately, we do NOT live in a society where rape is an accepted behavior.

Your questions are not equivalent, thus you are conflating two separate issues – whether and to what extent non-direct psychic harm should inform legality, and whether something should be legal simply because in a particular instance it does or does not cause direct psychic or physical harm.
Q1: “In other words, is the psychic harm to Farnsworth an argument for discouraging pornography through, say, taxation or regulation?”
Q2: “In other words, is the psychic harm to Granola an argument for discouraging, say, oil drilling in Alaska, either through taxes or regulation?”
Q3: “Ought the law discourage such acts of rape? Should they be illegal?”
Question 3 could have more appropriately and consistently be stated something along the lines of: Ought the psychic harm “we” feel influence the legality or punishment for this particular version of rape?
Stated that way, it comes back into line with your thought experiment, and does not overreach into the realm of whether any particular item or act SHOULD be legal. Your meta question would have been far more meaningful that way, if less sensational.

This hypothetical goes off the rails by proposition #2. Drilling in a forest is necessarily destructive, while masturbation is not. Person #1′s objection is purely aesthetic. Person #2′s revulsion is based on the idea that something of intrinsic value is being destroyed. To use an extreme example, Person #2 may never visit Syria and know no Syrians, but the her revulsion at the destruction of Syrian lives is still a valid policy consideration. In short, her desire to protect what is from destruction (let’s say empathy) is different in kind from masturbation (aesthetics).
Proposition #3 does not apply to the Stubenville situation (in which there was awareness, even if after the fact) and in no way resembles real sex. It is specious by its own terms, but laughable in any setting approaching real life.

Steven is attempting to create a ‘thought experiment’ that isolates ‘psychic harm’ from other harms. It fails when it is applied to the physical reality of the world we live in, especially when Steven struggles with the distinction between ‘psychic harm’ and real harm.

In order to make his hypothetical experiment work, he expands the concept of psychic harm beyond that of Case A, in which the entire ‘harm’ exists in the head of the ‘victim’, to redefine it as the mental experience of harm.

By that expanded definition, all harm, or indeed all experience, only exists in the head. Shooting a person is only experienced by the victim in the changing mental states in his own head. Stealing from a person in only experienced as a change of mental states in the persons head.

Unfortunately for the experiment, the posed question becomes meaningless under the expanded definition of ‘psychic harm.’

So, short answer, under the expanded definition of ‘psychic harm’, no, there should be no additional weight lent to ‘psychic harm’ or any ‘psychic experience’ because it is already accounted for in the general assumption that the participants are all human and experience the physical world through through the normal human senses.

Under a normal non-expanded definition of ‘psychic harm’, case A is completely different from case B and C because in the latter two cases the victims are experiencing real harms, to property held in common in the first, and to their body in the second.

This is why honest debate is so hard. Let’s look at what Landsburg is actually doing. He is challenging a common moral theory –the one he prefers actually — to see if it is adequate. He does so by facing it with a serious problem. This is what an honest person does with their own theories. Scientitst try to disprove their conjectures. It’s even what reputable professionals do in their areas of competence. When I want to see if my code works I try to break it, I look for cases it cannot handle.

Not all professionals are like this of course. Amanda Marcotte seems more interesting in generating emotional reactions than in understanding, more interested in getting noticed than getting it right.

I’d like to point out that nowhere in Question 3 is it stated that the victim never learned of his/her rape. Instead, it is argued that mental harm alone is not enough to say that a crime has been committed against the rape victim. Thus, under this worldview, the Steubenville rape victim wouldn’t be a victim of a crime even given the fact that she learned of the assault because the only harm that she suffered was mental (and not physical) harm.

There are two separate questions: Should the psychic harm felt by others have public policy weight, and should psychic harm felt by the victim have public policy weight. You’re right that the appropriate hypothetical case for focusing on the latter is a rape where the harm to the victim is both substantial and purely psychic. I’d guess that almost everyone’s instinct would be to give substantial policy weight to that harm. I also think we’re still missing a “bright line” criterion that weights that harm but not the harm to Farnsworth McCrankypants.

“As long as I’m safely unconsious and therefore shielded from the costs of an assault, why shouldn’t the rest of the world (or more specifically my attackers) be allowed to reap the benefits?”

Because it’s not sporting. If you have ever hunted ducks, you would know taht it’s not playing the game to shoot ducks that are on the water; you wait until they take flight. By the same token, one doesn’t relieve oneself on those who are unconscious. Only a very poor sportsman would be interested in such easy prey.

Question (1) is very different from question (2). Actually, as it is phrased, question (2) doesn’t make much sense. It’s silly to say that when someone is destroying a natural habitat of various forms of wildlife, they are producing a “psychic” harm. They are doing very real physical harm to something that happens not to be a human being. If a human being cares about that, that is a secondary (yet important) concern. Having said that, the answers to both (1) and (2) are “yes,” at least in a democracy where representatives are supposed to represent the interests of their constituents.

But there’s a far more important issue here, which is that the way in which you phrase these thought experiments as being about “psychic” harm implies that this “psychic” harm is in some way unreal. This skirts around the crucial issue here: PROPERTY IS A PSYCHIC STATE. ALL PROPERTY INFRINGEMENT IS PSYCHIC HARM.

That’s all it is. I work at a record store. A person walks in, takes a record, and walks out the door. I attempt to stop him, and he says, “No, this is my record.” I disagree. He replies, “This is a disputed property right. You think that the record belongs to you, and I think it belongs to me. Your opinion that this record belongs to you is only a psychic state. I have not damaged the record, and if you had been turned the other way when I left, you would not know that I had taken it. By declaring that it is mine, the only thing I have changed is your psychic state. By what right do you think your psychic state should influence public policy?”

You can do this with any case in which any property right is infringed.

The most you can say that your thought experiments have accomplished is proving that property rights make a very poor basis for morality or the law.

I think that what these examples really show is that the concept of psychic harm is not a useful way to think of people’s interests or policy preferences. No one advocates a particular policy because they are experiencing psychic harm, and to claim that someone else is doing so is merely a slur against their integrity. Opposition to pornography and oil drilling is grounded in either the argument that there are negative secondary effects from these things, that some moral principle is violated by them.

What I think this thought experiment really demonstrates is that any moral framework is an imperfect approximation of actual moral reasoning. In particular, these examples break down for two reasons. First, they are about policy, not individual actions. (i.e. “should porn be easily available,” not “should you yourself view porn”) Public policy, at least the kind most of us are talking about, is a negotiation between many different individuals and institutions, and there is no single despot who reasons himself to the best policy. Who is the “we” in these questions anyway? Are Farnsworth and Granola members of the “we”, and if not, why? What the question ends up boiling down to is either, “Should I, to the extent that I influence public policy, take positions based on other people’s preferences that I don’t agree with, for the sake of making them happy?”, or “Should people suspected of having arbitrary or irrational policy preferences by some higher authority be excluded from decision-making on that ground?” The fact that policy is influenced more by politics than by moral reasoning means that people’s intuitions about policy questions will be far removed from any coherent moral theory.

Secondly, moral beliefs are not interests. Speaking about someone’s convictions as an interest, or about the violation of said convictions as psychic harm, is attempting to force a round peg into a square hole. Granola’s actual reason for objecting to oil drilling isn’t that it makes her feel icky. People only state moral objections to a small subset of icky things. The difference between sexual harassment and dog poop is one of kind, not degree. In reality, she would express her objection to drilling not on the grounds that it makes her feel icky but on the grounds that destroying wilderness is a moral evil. I think what all three examples have in common is that they are all begging the question. To express a moral or policy question in these terms is to assert that the thing in question is no big deal, because if it were that you wouldn’t be talking in terms of psychic harm but in terms of moral evil. A and B sound plausible because a certain portion of the audience believes that porn and deforestation are no big deal, and even those who do consider them to be morally problematic are used to dealing with people who don’t. C sounds implausible because hardly anyone believes that rape is no big deal. So what C is really asking is something akin to, “If rape weren’t wrong then would it make sense to outlaw it anyway because women don’t like being raped?” This is the point at which thought experiments break down.